Several commenters disagreed with or asked for clarification regarding the proposed requirement that LSLR plans include a pitcher filter tracking and maintenance program. One commenter indicated that filter tracking and maintenance is unnecessary for short-term (up to 3 months) use because there would be nothing to track over time. A few commenters recommended that water systems simply be required to document that a pitcher filter was delivered, subject to review by the state.
Agency Response
Several commenters sought clarification about the proposed pitcher filter "tracking and maintenance plan" within the LSLR Plan. EPA's intent for this provision was for water systems to build a system to track which households have received a pitcher filter and when they are due for replacement filter cartridges. In light of comments on this issue, EPA determined that such a plan is not necessary because many water systems will simultaneously deliver the customer's pitcher filter, all replacement cartridges, and the associated public education, and therefore would not have to track cartridge replacements over time. This requirement has been removed from the final rule.
Other Comments Regarding LSLR Plans
Summary of Comments
One commenter recommended that the LSLR plan include the basis for the water system's inventory, including how uncertainty was considered in assigning pipe materials.
One commenter recommended that the LSLR plan include a communication strategy with customers with known or potential LSLs.
One commenter suggested rather than requiring water systems to develop a funding strategy for LSLR in its LSLR plan, it be required to pay for replacement of both the system-owned and customer-owned LSLR. Another commenter said that while full LSLR are preferable to partials, it is unclear how the financial burden of replacing the customer-owned side will be overcome.
Another commenter noted that replacing LSLs will lead to a sharp increase in demands for new service lines, increasing the price of purchasing new service lines. The commenter continued, saying that the rule should also add a section outlining the requirements for these service lines, including testing for what exact materials the service lines are composed of and its efficiency.
Agency Response
EPA disagrees that the replacement of LSLs will cause the price of pipes to significantly increase as a result of heightened demand. When the final rule is in effect, water systems will be required to conduct LSLR when there is an exceedance of the trigger level or action level, therefore, not all systems will be conducting LSLR at the same time. Additionally, given the wide range of options for service line material (i.e., copper and various types of plastics), demand will be dispersed across many products.
EPA disagrees that the final rule should require replaced service lines to undergo "testing for what exact materials the service lines are composed of and its efficiency," noting that the Reduction of Lead in Drinking Water Act and recent rulemaking by EPA (USEPA, 2020a) requires new plumbing products used in drinking water systems to meet the definition of lead-free, and the vast majority of products will be third-party certified as such. In addition, many states or municipalities require drinking water systems to conform to plumbing codes which may require additional specifications.
EPA agrees that water systems with many unknowns in their inventory would benefit from a plan to investigate service line materials. Therefore, EPA has added a requirement to the LSLR plan for water systems to develop a strategy to investigate unknowns. For comments about the inventorying of customer-owned service lines, please see response to comment Section 5.3. For more information regarding publishing inventory development methods and techniques, please see response to comment Section 5.4.
One commenter recommended that the LSLR plan include the basis for the water system's inventory, including how uncertainty was considered in assigning pipe materials. EPA agrees, noting that inventory development is directly linked to LSLR outcomes, and has added a requirement that the LSLR plan include a strategy for identifying lead status unknown service lines. EPA does not believe it is appropriate for the basis of each individual service line material identification to be included in the LSLR plan. For more information see response to comment Section 5.4.
EPA disagrees that the LSLR plan should include a communication strategy with people served by a service line known to contain lead or a lead status unknown service line because the communication requirements are outlined in the rule text under § 141.85(e). The LSLR plan components only include rule requirements related to LSLR, such as a strategy or notifying customers before a full or partial LSLR, and does not include reference to unrelated provisions in the LCRR. For EPA's response to comments on the requirement to notify persons served by an LSL, please see response to comment Section 8.3.
As part of the LSLR plan, the proposal required water systems to submit a state-approved goal LSLR rate by the rule effective date. Commenters noted a timing discrepancy, as states would not receive primacy for the LCRR final rule until three years after promulgation, so they would be unable to approve the LSLR goal rate until after the rule compliance date. EPA revised the final rule to require water systems to submit a recommended goal rate with the LSLR plan, and states will have six months to review and approve the goal rate or designate an alternative goal rate. For more information about the goal rate please see response to comment Section 6.7.
EPA disagrees that water systems should have to include justification, such as legal or technical, for its recommended goal rate in the LSLR plan. EPA does not believe it is necessary for to require water systems to conduct detailed legal or technical analyses to recommend a goal rate to the state. The state may request this information if it needs more information to evaluate the system's recommendation.
For more information about funding LSLR, see response to comment Section 6.1.
6.3 Types of Service Lines that Apply to Goal/Mandatory LSLR Rates
Inclusion of Galvanized Pipe in LSLR Rates
Summary of Comments
Several commenters indicated that galvanized service lines should not be considered LSLs and, therefore, should be excluded from inventories and LSLR requirements. One such commenter stated they "do not believe that they represent nearly the same level of adverse health impacts as LSLs..." One commenter stated they are "not clear on the reason why galvanized lines pose a sufficient risk as to warrant replacement but do not warrant including in the Tier 1 sample pool." Another commenter stated that focus on galvanized lines could dilute efforts to replace LSLs. Another commenter recommended that galvanized service lines be replaced, but not considered LSLs. One commenter stated that galvanized service lines are likely to be concentrated in lower income areas that "do not have the funds, or the desire, to replace their lines."
Two commenters expressed support for the "Michigan Rule," referring to Michigan's updated LCR, which like the proposed rule, requires replacement of galvanized service lines if the service line is or was downstream of lead piping (Michigan EGLE, 2019). One commenter said that galvanized service lines should be replaced if they were connected to lead piping, not just downstream of one. Another commenter requested clarification if a lead gooseneck connected to a galvanized line is considered an LSL. One commenter said that at their water system, all galvanized service lines are replaced at no cost to the customer and regardless of whether or not it was connected to an LSL, due to the poor condition of these service lines.
Agency Response
EPA determined that galvanized service lines that are or ever were downstream of an LSL require replacement. EPA is aware of the science that demonstrates galvanized service lines can adsorb lead particles from upstream lead sources and can contribute significant lead in drinking water. This potential lead exposure warrants a requirement in the final rule to be replaced as LSLs are. Coupling LSLs and these galvanized lines together with similar replacement requirements is efficient as water systems can engage the customer in similar ways and coordinate replacement using the same protocol in their LSLR plan. Thus, EPA has retained this structure for the final rule. While these "galvanized requiring replacement" service lines must be replaced, they are not treated as LSLs in the inventory or tap sampling tiering requirements. For more information about tap sampling and galvanized service lines please see response to comment Section 9.2. EPA is not requiring replacement of galvanized service lines that are or were downstream of a lead gooseneck. For more information, please see response to topic 5.3.
EPA agrees that including galvanized requiring replacement service lines into LSLR programs might slow replacements of pure lead lines. As mentioned above, however, these lines can contribute significant lead into drinking water and warrant replacement. Additionally, coupling these two types of service lines into one replacement program has efficiency benefits. The final rule maintains the proposed inclusion of galvanized requiring replacement service lines as part of a systems LSLR program for these reasons.
EPA disagrees that any galvanized service line connected to an LSL, regardless of whether it was upstream or downstream, should require replacement. EPA is not aware of any evidence that galvanized lines upstream of an LSL can contribute lead in drinking water from adsorbed particulate lead released from the LSL. For more information about how galvanized service lines can contribute lead into drinking water if they are or were downstream of an LSL, please see response to comment Section 5.3.
Inclusion of Lead Status Unknown Service Lines in LSLR Rates
Summary of Comments
Several commenters indicated that lead status unknown service lines should not be included in calculations of mandatory or goal-based LSLR requirements. Including unknowns, some commenters said, could set an unrealistic annual LSLR rate for some systems. One commenter said that unknowns that are determined unlikely to be LSLs should not be included in the LSLR rate. Other commenters recommended, instead, that if a water system investigates an unknown service line and determines it is not made of lead, then it should count as a replacement under the goal and mandatory LSLR rates. One commenter said that if investigation of unknowns are not counted towards the LSLR rate, water systems could fail to comply with the LSLR rate because they may not be able to find enough unknowns that are found to be LSLs to count towards the LSLR rate. One commenter said EPA should develop an "opt-out" mechanism for water systems with many unknowns which are unlikely to be LSLs. Another commenter said EPA should incorporate a "safe harbor" provision to prevent the water system from having to investigate all its unknowns in one year, such as designating that the investigation of two lead status unknown service lines as equivalent to one LSLR. Some commenters supported the inclusion of lead status unknown service lines in the calculation of LSLR requirements because it provides an incentive for water systems to conduct a full service line inventory and will be most protective of consumers.
Agency Response
EPA disagrees with commenters requesting that lead status unknown service lines be excluded from calculations of mandatory and goal-based LSLR requirements or providing an opt-out mechanism or safe harbor provision. Excluding lead status unknown service lines in determining the mandatory LSLR rate would disincentivize the water system from creating a robust initial inventory or investigating lead status unknown service lines over time. Under a rule structure where unknowns are excluded, water systems would be incentivized to leave vast portions of service connections inventoried as "lead status unknown" to minimize LSLR burden should the water system exceed the lead trigger or action level. This would be at the detriment of consumers who would continue to be exposed to lead from unknowns that are actually LSLs when the system is required to conduct under a goal-based or mandatory LSLR program. EPA also disagrees that the rule will result in systems with many unknowns unable to conduct the number of required replacements should they exceed the lead trigger or action level. Water systems must include a strategy for identifying unknowns in their LSLR plan and therefore, EPA expects over the course of normal operations that systems will improve and update their inventories, thus reducing the number of lead status unknown service lines over time.
EPA disagrees with commenters that suggest verification of a lead status unknown service line to be non-lead should count as a replaced LSL. While EPA values system efforts to identify service line materials, providing replacement credit for investigating lead status unknown service lines would be counterproductive to full LSLR goals  -  to permanently remove a significant source of lead in drinking water. This is consistent with the final rule requirements that eliminate counting test-outs and partial LSLR towards the full LSLR replacement rates. If EPA were to allow replacement credit for investigating unknowns, a water system could theoretically comply with LSLR requirements without conducting a single or a meaningful number of full LSLRs. Additionally, this may incentivize the water system to wait to update their inventory until the lead trigger level or action level is exceeded, allowing them to comply through material investigations instead of making a good faith effort to conduct full LSLR. Commenters who expressed concern that many unknowns in the inventory could make it difficult to find LSLs to replace and thus meet the LSLR rate may solve that problem through robust inventory development efforts over time. Using best professional judgement or a statistical method to determine where LSLs are more likely to be located can be beneficial to ensure that inventory and replacement efforts are most efficient.
EPA also affirms that, contrary to suggestions made in some comments, water systems are in fact rewarded for verifying the material of lead status unknown service lines. While they don't receive LSLR credit for material investigations, water systems can reduce the number of households that must receive the annual public education regarding LSLs and the potential number of LSLRs required if the system exceeds the action level by demonstrating lead status unknown service lines are non-lead. This incentivizes water systems to regularly update the inventory over time as a strategy to decrease the LSLR burden should it exceed the lead action level.
Inclusion of Customer-Owned Service Lines in LSLR Rates
Summary of Comments
Commenters suggested that because customer-owned LSLs are outside of system control, they are the customer's responsibility and there should be no requirement for the water system to replace them. Several commenters indicated that partial LSLR should count toward the LSLR rate. These commenters cite concerns about complying with LSLR rates should the customer be unwilling or unable to replace the portion he or she owns. One commenter recommended that partial LSL replacements count toward the replacement goal in two scenarios: "(1) Replacing private LSLs from previously conducted partial LSL replacements; and (2) Replacing the public side of an LSL due to unresponsive or recalcitrant homeowners. In the case of an unresponsive homeowner, a water system must reach out to the homeowner at least twice in two different ways (for example, some combination of mailing, doorhanger, or phone call)."
Two commenters expressed support for EPA's proposal to revise the previous LCR to require full LSLR.
One commenter requested clarification if conducing an LSLR on the customer side where a past partial occurred, asking if the replacement under that scenario counts as a full LSLR or partial LSLR.
One commenter requested that EPA require water systems to demonstrate that they replaced the system-owned and customer-owned LSL at the same time, as they could theoretically replace them as far as a year apart and still get full replacement credit while consumers could be served by a partially replaced LSL for an extended period of time.
Agency Response
EPA disagrees that customer-owned service lines should not be included in the LSLR rates if they are outside the system's control. EPA notes that the existing rule has many requirements that apply regardless of ownership status, such as § 141.84(b) (i.e., developing an LSLR plan) and § 141.90(e)(1) (i.e., submitting the LSLR inventory to the state). These requirements are critical to mitigating the risk of lead in drinking water because system actions can impact lead release from customer-owned service lines despite potentially being outside of system control. The final rule retains the inclusion of customer-owned service lines in LSLR rates.
Regarding the situation where a partial replacement of the water system-owned LSL was conducted in the past leaving in place the customer-owned LSL, EPA considers the subsequent replacement of the remaining customer-owned LSL to be a full LSLR because it fully replaces the LSL at the connection. EPA clarified its intent by adding definitions for full LSLR and partial LSLR in the final rule.
EPA does not agree that a water system should have to prove that it replaced the customer- and system-owned LSL simultaneously to receive replacement credit. Due to the increased costs to perform two separate replacements, as opposed to combining them, EPA expects water systems will try to coordinate LSLR as much as possible. Furthermore, the final rule includes notification and risk mitigation procedures to ensure consumers are informed and protected after partials are conducted in the event the customer- and system-owned portions are replaced at different times.
Regarding LSLR of customer-owned service lines when customers are unresponsive or decline to participate, EPA has included provisions to account for unresponsive customers. See response to comment Section 6.11.
Inclusion of Lead Goosenecks, Pigtails, And Connectors (Connectors) in LSLR Rates
Summary of Comments
Two commenters stated that replacement of lead connectors should count toward LSLR rates because they are a source of lead in drinking water and water systems should receive credit for efforts to remove them.
Agency Response
EPA agrees that lead connectors can contribute lead into drinking water but disagrees with commenters who requested that their removal count as an LSLR after a TLE or ALE. EPA determined that, given the requirement that they be replaced when encountered by the water system at any time, counting their replacement towards LSLR rates could reduce the number of LSLs replaced in LSLR programs. For example, every lead connector replaced during a planned main replacement may leave in service an LSL, which would have otherwise been replaced while the system is considered in compliance with the LSLR requirements. EPA has responded to other related comments in the Section 6.4 and 5.3.
6.4 Lead Connector Replacement When Encountered
Summary of Comments
Many commenters agreed that lead connectors should be replaced as they are encountered, with one commenter noting this is an existing practice for their water system. A few commenters did not agree with this proposed requirement. One commenter suggested replacement of lead connectors should be made voluntary as they are being treated with the same level of risk as LSLs. In addition, the commenter stated, the proposed rule does not provide tracking or reporting associated with lead connector replacement, which would make implementation more difficult and ineffective.
Commenters noted that because these pipes can leach lead into drinking water, they should be replaced as part of water systems' LSLR programs. Some commenters recommended that removal of lead connectors count as an LSLR for the purposes of goal and mandatory LSLR as described under proposed requirements in §141.84(f) and §141.84(g), respectively.
One commenter requested that EPA maintain a separate definition for lead connector and LSLs in the final rule. Some commenters requested guidance or clarification on the definition of a lead connector. Commenters also asked that EPA define the maximum length of a connector before it is considered an LSL. Additionally, some commenters stated that only replacing a lead connector may be considered a partial LSLR, which is prohibited within some state regulations (e.g., Michigan, Ohio). A commenter noted that lead goosenecks are counted as LSLs for purposes of the inventory in the State of California.
A commenter suggested that the risk mitigation procedures following a lead connector replacement were overly stringent "given the low-level risks associated with lead goosenecks."
A commenter suggested clarification about the proposed requirements for customer-owned lead connectors.
EPA Response
EPA agrees that lead connectors can be a source of lead in drinking water and disagrees that their removal should be voluntary when encountered during water system activities. Because connectors are typically owned by the water system and can be replaced at relatively low cost when done in coordination with other distribution system work, the final rule requires water systems to take advantage of the opportunity to remove this source of lead from drinking water infrastructure. EPA also disagrees that their replacement should contribute towards LSLR rates. Given the proposed requirement to remove lead connectors whenever encountered under § 141.84(c), including replacement of lead connectors in goal or mandatory LSLR programs could result in less lead being removed from the distribution system. Presuming the replacement of lead connectors in coordination with other activities would occur regardless, counting their replacement towards the water system's LSLR rate could leave in place an LSL that would have been scheduled for replacement at a different location. Furthermore, while connectors typically do not exceed a foot and a half in length, LSLs can be tens of times longer than connectors, suggesting they have a much higher potential to contribute to lead into drinking water. Thus, EPA is retaining the proposed lead connector removal requirements for the final rule, excluding them from the LSLR requirements but mandating they be removed whenever encountered during water system activities. EPA notes that if a lead connector is attached to an LSL replaced under § 141.84(f) or (g), the lead connector will be required to be simultaneously removed under § 141.84(c).
In response to comments requesting guidance or clarification on the definition of a lead connector, including the maximum length before a lead connector is considered an LSL, EPA is aware that connectors are generally a foot to two feet in length; however, the definition EPA included in the proposal emphasizes function over length as the defining feature of connectors. Specifically, EPA proposed that goosenecks, pigtails, and connectors are "used for connections between rigid service piping." Further, the final rule definition of a partial LSLR excludes the replacement of only a lead connector.
EPA does not consider removal of a lead connector attached to an LSL to be a partial LSLR. EPA agrees, however, that removing a lead connector and leaving a downstream LSL in place can cause an LSL disturbance that causes increased lead levels in drinking water. The final rule therefore includes many of the same risk mitigation procedures after replacement of a lead connector as required after a partial LSLR. These procedures include consumer notification, flushing, and filter delivery. EPA recognizes, however, that some states may define a lead connector as part of the service line, and ban all partial LSLR. Section 141.84(c)(6) of the final rule includes new text stating that "the requirements of 141.84(c)(1), (2),(3), and (5) do not apply if state law includes lead connectors in the definition of lead service lines, prohibits partial lead service line replacements, and requires systems to remove all lead service lines irrespective of a system's 90th percentile lead level." This will ensure that water systems can remain compliant with federal and state law, while ensuring that consistent progress is made towards the replacement of lead connectors over time. For more information, please see response to comment Section 6.4.
The final rule retains the proposed requirement for water systems to offer to replace customer-owned lead connectors. Because water systems do not control customer-owned lead connectors, they are not required to replace the connector should the customer refuse the replacement, nor is the water system obligated to pay for the replacement of a customer-owned lead connector.
The final rule includes a requirement for systems to periodically certify to the state it conducted replacement of any encountered goosenecks, pigtail, and connectors and therefore, EPA does not agree with the comment that the proposed rule does not provide reporting associated with lead connector replacement. Because the reporting requirement includes a certification requirement, it is expected that water systems will implement the requirement in such a way as to enable the system to make the certification using, for example, a standard operating procedure or a tracking system.
For more information about lead connectors in the final rule, please review response to comment Sections 5.3 regarding their inclusion in the inventory and 6.3 regarding LSLR requirements.
6.5 Customer-Requested LSLR
Summary of Comments
Many commenters expressed broad support for a requirement that water systems complete the LSLR after customers replace their portion. A few commenters said the 45-day timeframe to complete the customer-initiated LSLR is too long, with one commenter recommending 20 days instead. A few commenters said that the 45-day timeframe provides adequate time for the water system to complete the replacement. One commenter said that their water system routinely conducts construction work in response to emergency water leaks, and noted that customer-requested LSLR may have to be characterized as "emergencies" to obtain necessary permits to complete the work in time.
Numerous commenters indicated that while they agreed with the concept of completing a customer-requested LSLR, the proposed deadline of 45 days was too stringent. Commenters noted that many states and localities have construction moratoriums during winter months, which would make this LSLR during these months infeasible. Moreover, many commenters stated there could be other factors beyond the water system's control that could also make compliance with the 45-day requirement challenging. Some factors provided by commenters included weather-related delays, coordination of construction or street excavation efforts, obtaining replacement parts, safety issues, and local permitting requirements. Furthermore, some commenters noted that systems using contractors may require longer than 45 days to complete the replacement due to the process for bidding and awarding of contracts. One commenter said EPA did not provide justification for choosing a deadline of 45 days. A few commenters said 45 days should be a goal, not a deadline. Commenters suggested alternative deadlines to complete the LSLR of 2, 3, 4, 6, and 12 months as more appropriate. One commenter recommended EPA conduct a pilot program for different municipalities to determine the average time it takes to complete an LSLR. Another commenter suggested the final rule should have no deadline, instead basing compliance off a water system having a protocol for coordinating timely replacement, with records available upon request showing how long the water system took to complete LSLRs. A commenter suggested allowing systems, in coordination with the state, to develop a plan within 45 days to eventually replace the LSL, should seasonal or other issues cause delays. Another commenter suggested something similar, requiring the LSLR to be completed in 45 days "unless impractical," which would allow the water system an extension. One commenter suggested tap sampling at the residence should be conducted after the customer-replacement, requiring the LSL to be replaced within 45 days if the sample exceeds the lead action level, with a longer timeframe for service lines that test below the lead action level.
A few commenters also expressed concern that there may be a surge in customer requests for LSLR following the release of the public LSL inventory, making compliance with this requirement more difficult. Several commenters asserted that water systems should instead have an established protocol within their LSLR plan, practical to the specifics of that system and agreements with customers, for timely replacement of the water-system owned portion of the LSL when a customer replaces their portion of the LSL.
Some commenters noted that customers may express their intention to replace their portion of the LSL, but not actually follow through with the replacement. Commenters claimed the proposed rule could be potentially interpreted as requiring the water system to replace their portion after a customer expresses intention to conduct LSLR, without following through and replacing their portion. Commenters recommended EPA amend §141.84(d) to apply if customers provide documentation or other proof, such as a plumbing permit, that the customer portion will be or has been completed in order to avoid partial LSLR should the customer portion remain in place after the system-owned potion is removed.
EPA also received comments stating EPA should provide rationale or clarification of §141.84(d)(5), which states that the water system is not required to complete the LSLR of the system-owned portion if the customer-owned portion of the LSLR occurred more than three months in the past. Additionally, some commenters did not support the three-month timeframe and requested it should be extended or that there be no end date for the water system to replace their portion of the LSL.
EPA received a comment asking what is required "if the existing lead service is of a size that is no longer used, say (1/2)" or 5/8" of the various lead sizes- is the system obligated to replace in kind or must it adhere to its latest requirements. For instance if all new services are to be installed as 1-1/2" in size minimum and the lead service is an older 5/8" lead- what size is the system obligated to install or can the system require the requestor to offset the difference in cost for the upgraded service size?"
A commenter recommended language be added stating that if the customer does not request system-owned service replacement within 30 days of completing their side of the service replacement, the utility shall not have to proceed with the replacement at a higher priority than determined in their LSLR program.
A commenter suggested that water systems should be required to provide filters or an alternate source of water to the consumer until the replacement could be completed.
A commenter said that the rule should not require the water system to conduct LSLR where there are safety issues, such as the LSL entering the foundation of the home through an inaccessible crawlspace. In these situations, the commenter said, the water system should be allowed to replace as much of the line as it can while leaving in place any inaccessible part of the LSL.
A commenter recommended that the final rule should require water systems to maintain records that log its interactions with customers who have reported that they have replaced their privately owned portion of their LSL, and these records should be made available upon request to the state.
A commenter said that conducting LSLR individually in response to customer's request, rather than systematically, could increase the cost of LSLR and concentrate replacements in areas where customers can afford it. The commenter suggested that local governments should develop a plan to prioritize LSLR in areas that serve vulnerable populations. A commenter expressed concern that customer requested LSLR would disincentivize cost-effective LSLR, stating that systems can keep costs down by "coordinating with contractors to do projects at scale" and conducting LSLR during planned capital improvement plans.
A commenter said that water systems should be required to replace all past partials within 45 days of notification, not just those completed within the last three months as proposed. Another commenter said that given the length of time it took EPA to issue the final rule, it would be unfair to proactive customers who replaced their portion of the LSL and would not be subject to the proposed requirements for water systems to complete the replacement if it occurred up to three months in the past.
Agency Response
EPA agrees with commenters that some situations, such as a seasonal construction moratorium, might render a water system unable to complete its portion of an LSLR within 45 days of a customer-initiated LSLR. For the final rule, EPA retained the requirement in §141.84(d)(3) and §141.84(d)(4) that the water system must complete the LSLR within 45 days, with the ability to extend to 180 days upon notification to the state. This will ensure water systems make a timely effort to complete the LSLR, while allowing for additional time should other factors which make the 45-day deadline infeasible. The water system must provide a pitcher or POU filter to the consumer with six months of replacement cartridges to cover the entire time that there is a partial LSLR should the water system need the full 180 days to replace their portion. This addition offers flexibility given the potential for delays caused by factors outside of the water system's control, while ensuring that all customers that replace their portion of the LSLR receive a full LSLR and are protected from elevated lead exposure with a pitcher or POU filter provided at no cost. EPA disagrees with the commenter who suggested there should be no deadline to complete LSLR. In many cases the 45-day deadline will be feasible, and the 6-month extension provides adequate time for all other replacements that may be delayed due to seasonal or other factors. The deadline extension may also accommodate systems that receive a surge of requests for customer-replacement in a short period of time. EPA also recommends water systems engage with customers to coordinate replacement when possible, rather than take a reactionary approach where customers replaces their portion and initiates the deadline for the system to complete the replacement. While EPA encourages customer-initiated LSLR to be completed as soon as practicable, the Agency disagrees that water systems should be required to complete them in less than 45 days, given the potential for factors outside of the water system's control to cause delays, such as weather, permitting, and coordination with other utilities.
EPA disagrees that lead tap sampling should determine the deadline to complete a customer-initiated LSLR, for example mandating that sites that test above 15 ug/L must complete the replacement within 45 days and sites that test at or below may take additional time. Due to the variability of lead levels following a partial LSLR, a one-time sample may not capture representative lead levels at the tap. Additionally, the added costs and time to conduct sampling do not provide the flexibility intended by the commenter. It may take weeks for water systems to coordinate with the customer to visit the site to conduct tap sampling, or to ship sampling materials to customers and await receipt of the sample (provided the customer completes sampling and returns the samples in a timely manner), and then process the sample in a laboratory. Awaiting tap sampling results could make the deadline even harder to achieve, especially when sample results are above 15 ug/L and require the replacement to be completed within 45 days. Furthermore, this regulatory approach would not consider the other factors, such as seasonal delays, that other commenters raised as concerns for meeting the proposed deadline. The final rule, therefore, does not allow an extension based on tap sample results at the customer-initiated LSLR site.
EPA notes that the final rule's LSLR plan requirements already include operating procedures for LSLR as well as other components that can facilitate the timely completion of the customer-initiated LSLR. Establishing these procedures in advance can help the water system meet the 45-day deadline. For example, water systems using contractors to perform the work could attempt to establish contracts ahead of time to prevent having to undergo the bidding and awarding process within the 45-day replacement deadline.
Regarding the provision in §141.84(d)(5) that the water system is not required to complete the full LSLR with the replacement of their portion if the customer-owned LSLR occurred more than three months in the past, the final rule extends the time that water systems must complete past customer-initiated LSLR from three months to six months. The rationale for this change is to account for variable particulate lead release at some homes that may extend more than three months (USEPA, 2011). EPA does not agree with commenters who suggested that water systems must complete the LSLR of any partial replacement that has occurred at any point in the past. Past partials that occurred years before do not warrant imminent replacement due to the stabilization of these pipes over time. Therefore, the purpose of this requirement  -  to prevent and address those elevated lead levels  -  would not be served by extending this requirement to any partial replacement that has occurred in the past. Moreover, such a requirement could have the effect of concentrating a water system's LSLR resources in areas where lead levels are relatively lower. The unreplaced system-owned portion will remain in the inventory and eligible for replacement under §141.84(f) and (g).
EPA acknowledges the proposed LCRR could have been interpreted such that customers' intent to replace their LSL could trigger the requirements under § 141.84(d), even if they failed to follow through on their intent. EPA updated the regulatory text in the final rule to clarify that customers must actually replace their service line, or coordinate for simultaneous replacement with the water system, for the system replacement requirements in §141.84(d)(3) and §141.84(d)(4) to apply.
In response to the comment about service upgrades, EPA notes that the final LCRR does not mandate anything in regard to the material (except that it must meet the SDWA definition of lead free) or diameter of the replaced pipe. Instead, state or municipal plumbing codes may dictate these specifications, including those related to customers replacing their portion. The final LCRR also does not include any provision regarding whether customers can be charged for a service upgrade if their replaced pipe diameter is increased as it is not within EPA's authority to regulate how water systems charge for their services. EPA recommends water systems plan for these potential scenarios in their LSLR plan.
EPA disagrees that customers should have to request that the system-owned LSL be replaced, as they may not be aware of the potential for a partially replaced LSL can cause higher lead levels in drinking water. EPA disagrees that after 30 days, the partially replaced LSLs should become lower priority for replacement. Due to the potential for lead levels to remain elevated for months following a partial LSLR, water systems must complete prior partials that have occurred up to six months in the past in the final rule.
In reference to providing a filter or alternate water between replacement of the customer-owned and the system-owned LSL, please see response to comment Section 6.6.
EPA does not encourage LSLR where there are imminent safety issues; however, EPA does not agree with the commenter who suggested a water system would encounter the stated safety issues or inaccessible LSLs, such as in a crawlspace or confined area, in regard to this requirement. The system-owned portion often runs from the water main to the property line or in the customer's yard. The issues raised by the commenter would not apply in regard to customer-requested LSLR.
While EPA agrees that responding to individual customer-initiated LSLR, rather than replacing LSLs exclusively on a systematic basis, could increase the overall cost of an LSLR program, the potential for partial LSLR to cause lead levels in drinking water warrants the completion of a customer-initiated LSLR in a timely manner. EPA recommends water systems investigate ways to increase the efficiency of customer-initiated LSLR, such as conducting other nearby LSLR or service line material investigations for the inventory. EPA agrees that customer-initiated LSLR may occur disproportionately in areas where customers can afford to pay for LSLR. However, the LSLR plan includes requirements for prioritizing LSLR when conducted as part of a goal-based or mandatory LSLR program, as well as creating a strategy for funding full LSLR where the customer is unable to pay for the replacement of their portion. For more information see response to comment Section 6.2.
EPA believes it would create unnecessary burden to require water systems to maintain records of every interaction they had with a customer regarding customer-initiated replacement, and to keep these records available for review by the state. Water systems must certify annually under § 141.90(e)(6) that they have completed all customer-initiated LSLR in accordance with § 141.84(d), which will reduce administrative burden while ensuring this provision is enforceable.
6.6 Post-disturbance/Replacement Protocol
Customer Notification After LSLR and Other Disturbances
Summary of Comments
Commenters had a wide variety of perspectives about post-LSLR notification requirements. Some commenters found the proposed rule's notification requirements for LSLR to be confusing and requested clarification, suggesting some systems may avoid LSLR if not further clarified. A few commenters specifically asked that EPA clarify the definition of "within 24 hours" (i.e., 24 hours before the replacement starts or 24 hours after the replacement is complete). One commenter asked that if the water system is replacing the customer‐owned portion of an LSL, the water system should provide more than 24‐hour's notice to the customer that the water system is going to be taking actions for which the customer will be held financially responsible. Several commenters indicated that when planned full or partial LSLRs occur, information and filters should be provided prior to replacement. One commenter suggested that because water system repairs occur 24 hours a day, an initial doorhanger or brief notice following a repair could be supplemented with more complete follow-through including instructions for flushing or the provision of a filter within two business days of completing the replacement. Other commenters suggest that notification of risk mitigation measures in the event of an emergency partial LSLR within 24-hours should be extended to 3 days.
Some commenters requested clarification regarding which LSL disturbances trigger which required notifications and actions. Specifically, commenters asked for clarity on if a water main shutoff could trigger risk mitigation provisions to individual LSLs connected to the affected main, given the risk mitigation measures required after water is shut off at an individual LSL. Commenters stated that some disturbances, like the repair of water mains, valves, and hydrants, do not warrant public education because they do not dry out the LSL nor scour lead scales. Several commenters said that changing the water meter does not often result in a significant disturbance to the service line because the meter can be removed from the meter setter without cutting into the pipe. Additionally, commenters requested clarification about the applicable rule requirements when a disturbance occurs at a customer-owned service line inventoried as lead status unknown. One commenter asked for clarification about notification and filter requirements if a lead gooseneck is removed and a copper service line remains.
Some commenters requested that EPA cite ANSI/AWWA C810-17 (ANSI, 2017) as the required flushing protocol for LSLR. Other commenters suggested that EPA should not include the requirement for systems to supply flushing instructions during every temporary water shut off because of the associated burden. They suggested that EPA could allow water systems to provide alternative methods of outreach (e.g., publishing information on the actions to be taken during a water shut-off on the system LSL inventory webpage or through annual outreach materials).
Agency Response
For the final rule, EPA clarified the types of service line disturbances that would require public education and risk mitigation. As some commenters interpreted the proposed rule as triggering risk mitigation provisions at service lines connected to a main whose water has been shut off, the final rule specifies that disturbances include water being shut off at an individual LSL.
EPA agrees with commenters who described the variety of water meter configurations that could potentially lead to different degrees of LSL disturbances. For the final rule, EPA updated the final rule to require risk mitigation steps that involve a filter be restricted to changing the water meter setter or an inline meter; whereas, changing a tandem water meter with a bypass line would only trigger public education and flushing because it is less likely to cause a disturbance. The final rule takes a more cautious approach for inline water meters and requires a filter upon replacement due to the potential for more direct physical disturbance to the LSL.
Some commenters requested clarification about the time requirements to notify customers about various LSL activities. In the proposed rule, planned partial LSLRs would require notification of the customer at least 45 days before the planned replacement is scheduled to take place. For partial LSLRs that occur unexpectedly due to an emergency repair, a water system would be required to notify the customer within 24 hours after the partial LSLR. Due to the reactionary nature of emergency repairs, advanced notice is generally not possible. Some commenters requested that notification of risk mitigation measures in the event of an emergency partial LSLR within 24 hours be extended to three days. Other commenters requested that water systems with no LSLs in their inventory, who later find one, should be allowed more than 24 hours to provide consumers a filter certified to remove lead in drinking water because the system might not have a filter readily available. EPA disagrees with these commenters because providing notice and a filter within 24 hours allows for consumers to protect themselves from potential increases in lead levels in their drinking water. Additionally, water systems with no LSLs in their inventory might still have lead connectors in their distribution system, which require a filter post-replacement in the final rule.
Requirement for Water Systems to Provide Pitcher Filters Post-LSLR and After Other Disturbances
Summary of Comments
Many commenters agreed that pitcher filters were appropriate for risk mitigation after LSLR or other disturbances. Some commenters requested that EPA require water systems to provide filters for longer than the three months proposed, pointing out that if the proposed follow-up tap sample result arrived six months after replacement and showed lead levels remain elevated, but only three months of filters were provided, the customer could have unknowingly been exposed to higher lead levels for three months.
Some commenters did not support the requirement for water systems to provide pitcher filters after LSLR or other disturbances, raising concerns that the requirement would be overly burdensome or unnecessary. Some commenters thought providing filters was not needed following a full LSLR because the lead source is fully removed. Some commenters believed the customer should be responsible for paying for the filter. Others suggested that filters should only be provided to single-family residences, stating that it is not practical to provide filters to multi-family residences or other large buildings. Some commenters reasoned that filters are not always necessary when service lines are flushed and there is effective optimal corrosion control treatment (OCCT), suggesting that EPA emphasize flushing protocols and public notification and education as the main risk mitigation measures, using filters in situation-specific cases determined by the system with state oversight. A commenter stated that filters should not be required following all meter, gooseneck and pigtail replacements due the large number of filters that would be required. The commenter instead recommended a "good faith" effort to notify customers and to conduct flushing. There was one request for EPA to provide data showing that disturbances cannot be addressed by high velocity flushing. One commenter expressed a concern that filters would remove fluoride from water, negating the associated public health benefit of fluoride.
Several comments were received regarding the delivery protocols for pitcher filters after LSLR or service line disturbances and how water systems should track filter distribution. Some commenters see the requirement to deliver pitcher filters to the homeowner within 24 hours as unreasonable and ask that EPA consider extending the deadline. Other commenters noted that it may be less wasteful to make filters available upon request at no cost to the homeowner, instead of automatic delivery of filters, to prevent a customer from receiving a filter if they do not want a one or already have one. There were also requests for EPA to provide guidance on delivery of the filter in the case that there is a vacant home or no response from the homeowner. Another commenter offered that if a system submits an LSL inventory with no known LSLs, but finds an LSL in the course of repairs, the system should be able to offer reimbursement to the customers to purchase filters or EPA should make an exception to the 24-hour delivery requirement as those systems may not have available filters.
EPA received many comments requesting that the relevant certification standard be cited when requiring pitcher filters certified to remove lead. Several commenters requested EPA provide a list of approved filters. Some commenters expressed concerns about the market availability of pitcher filters certified to remove lead and suggested the final rule could allow the state to make alternative arrangements if there is not enough supply of filters. Many commenters also noted that customers may not properly install and maintain filters, and that there can be significant variabilities in the need for replacement cartridges given the number of persons using the filter and water usage needs for different customers. Moreover, commenters offered concern with the proposed rule only identifying pitcher filters as the risk mitigation strategy and asked that water systems have the flexibility to provide alternative compliance options such as bottled water, POU filters, or other certified devices, instead of being required to provide pitcher filters for lead removal as required in the proposal. Other commenters expressed that EPA should ensure that the rule is not written to restrict technological advances. Some commenters suggested that EPA should focus on requiring flushing instructions and education materials instead of requiring a pitcher filter.
Several commenters requested clarity about pitcher filter requirements after water shutoffs due to non-payment, asking if these customers would be entitled to a pitcher filter. A commenter objected to the required pitcher and cartridges following a resumption of service after a non-payment-related shutoff because it will add to the cost of non‐payment shut offs and, potentially, delay the resumption of water service.
Commenters claimed that changing the water meter does not often result in a significant disturbance to the service line and should not require risk mitigation steps. Often the water meter is attached to a water meter setter, which is directly connected to the service line pipe. The water meter can be replaced after shutting off the water at an individual service line, but without making any cuts into the pipe itself. Replacement of the water meter setter, commenters stated, likely results in more disturbance of the service line. A commenter also requested that EPA only require a filter to be issued if plumbing changes to the meter setting were required.
One commenter said that the rule requirements were unclear as to who is responsible for maintaining or disposing of the filter after three months.
Agency Response
For the final rule, EPA is requiring that filters be provided for six months after LSLRs and certain types of disturbances. EPA agrees that requiring filters for six months instead of three months as proposed closes a potential gap in the health protection for consumers. Under the proposed rule requirements, a tap sample taken between three and six months could show an elevated lead level, but a filter was only provided for three months, resulting in the consumer's potential exposure to elevated lead levels for up to three months after filter cartridges stopped being provided. To prevent this scenario from occurring, the final rule requires water systems to provide a pitcher filter for six months. EPA does not expect this requirement to add significant costs to the final rule. Some filters certified to remove lead offer cartridges lasting six months per unit, so water systems that already planned to use these filters would have no added costs. For other systems, costs can be minimized by ordering filters in bulk as many and delivering the filter and all replacement cartridges simultaneously, rather than delivering them separately in three-month increments.
EPA received many comments requesting that the relevant filter certification standard be cited in the regulation. EPA agrees and added the final rule language "pitcher filter certified by an American National Standards Institute [ANSI] accredited certifier to reduce lead" to ensure the filters are certified by an approved certifier. The relevant standard ANSI/NSF 53 is not mentioned by name to avoid potential Incorporation by Reference issues which would arise anytime the standard is updated. The new text will point water systems to the relevant standard. Additionally, EPA corrected text in the proposed rule that incorrectly read that ANSI was the certifier. Some commenters suggested EPA provide a list of certified filters. EPA disagrees because certifiers maintain their own list which provides water systems, consumers, and others with the most up-to-date information. EPA recommends that water systems follow manufacturer's instructions regarding issuing replacement cartridges.
Some commenters requested that water systems have the flexibility to provide bottled water or POU filters in lieu of pitcher filters for lead removal as required in the proposal. EPA agrees, noting that while pitcher filters are the most cost-effective compliance option, POU devices are a feasible and effective approach as well. EPA recommends that water systems distributing POU devices assist consumers or follow up with them to ensure that these filters are properly installed, given potential compatibility issues with these filters and certain faucets. Use of bottled water for risk mitigation would potentially be too burdensome alternative for consumers. The water system would have to determine what volume of water is adequate to supply for the consumers drinking and cooking for a six-month period, then either deliver the water all at once, or in multiple trips over six months. Some consumers may not have space to store bottled water adequate for all drinking and cooking uses for more than a few days or weeks at a time, increasing the likelihood that multiple trips would be needed to deliver bottled water. The logistics and coordination required for bottled water is too burdensome and therefore EPA is not including it in the final rule. Filters provide the most viable and efficient option for both water systems and consumers.
Some commenters expressed concerns about the market availability of pitcher filters certified to remove lead. They suggested the final rule should allow the state to make alternative arrangements if there is not an adequate supply of filters. EPA disagrees, noting that demand for pitcher filters that remove lead is increasing as many water systems around the country implement their own LSLR programs. Denver Water's variance from the previous LCR's CCT requirements involves the distribution of over 80,000 filters certified to remove lead to all homes with a known or suspected LSL. Additionally, the final rule requirements do not take effect until three years after promulgation, giving pitcher filter manufacturers time to build capacity to meet expected demand. Finally, the allowance of POU filters in the final rule can augment a system's supply of pitcher filters.
Commenters requested clarity about filter requirements after water shutoffs due to non-payment, asking if these customers would be entitled to a filter. Under the final rule, any customer who has their water shut off is entitled to public education and flushing instructions. Where a more significant disturbance occurs, such as a lead connector replacement or partial LSLR, the customer is entitled to a filter. EPA highlights that environmental justice concerns could be exacerbated if customers who had their water shut off due to non-payment were not provided the same risk mitigation actions as customers who could afford to pay. Water systems must follow the rule requirements regardless of the cause of the shut off or disturbance. In fact, customers who have had their water shut off for an extended period of time because of non-payment may be at increased risk of lead exposure than customers who had water shut off very briefly for a service line repair or meter replacement, due to the extended stagnation of water in the LSL that may occur. In this scenario, risk mitigation actions provide an even more significant opportunity to reduce lead exposure.
Some commenters sought clarification if the proposal required filter delivery where there is no response from the customer, or the home is vacant. Regarding non-responses, the water system must still provide the filter and public education. EPA acknowledges there may be situations precluding a customer from responding promptly, such as traveling. However, the customer could use the delivered filter upon returning to their residence. Regarding vacant homes, EPA does not view it as likely that a home which is truly vacant will have an active water service with a customer using the water. Therefore, water systems must still provide the filter and public education.
One commenter pointed their water system adds fluoride to its water for dental health purposes. The commenter noted that the filter requirements would undermine the decision to add fluoride because the filters would remove fluoride along with lead. EPA notes that pitcher filters that remove lead will not remove fluoride. Reverse osmosis is typically needed to achieve significant fluoride removal. Even if the filters interfered with fluoride, EPA notes there are many significant risks associated with lead exposure, and that the provision of filters in response to lead exposure mitigation is temporary.
A commenter suggested that elevated lead levels as a result of replacements or significant disturbances could be addressed with high velocity flushing rather than a filter. The commenter requested EPA provide data showing these scenarios cannot be addressed by high velocity flushing. EPA notes that the Agency has not encountered sufficient evidence that high velocity flushing can reliably reduce and stabilize lead levels following a replacement or a significant disturbance. EPA notes that lead release can be unpredictable, especially after a disturbance. EPA is requiring filters be provided to ensure that consumers are protected from potentially elevated lead levels following these incidents.
In response to the commenter who requested clarification of who is responsible for maintaining or disposing of the filter after the proposed time period of three months, EPA notes that there is nothing in the final rule requiring the water system to continue providing replacement filter cartridges after the time specified in the final rule, nor is it required to dispose of the filter. The consumer may purchase additional cartridges extending past the final rule's six-month time frame, and the consumer may dispose of the filter if he or she chooses.
Requirement for Water Systems to Conduct Tap Sampling Post-LSLR and Other Types of Disturbances
Summary of Comments
Some commenters highlighted that the wording of the proposal required water systems to take a tap sample after LSLR and some types of disturbances, but noted that tap sampling requires voluntary participation from the consumer. Despite a good faith effort to obtain customer consent to take the tap sample, commenters noted that the water system may be unable to obtain consent and would be in violation of the rule. Commenters emphasized that compliance should be based on the water system making an offer to take a tap sample, not taking a tap sample itself.
Some commenters thought that follow-up tap sampling should not be required following full LSLR if flushing is proven effective to remove lead. A commenter pointed out that Michigan's LCR does not have such a requirement (Michigan EGLE, 2019). Other commenters thought tap sampling after a replacement or disturbance should be up to the water system. Other commenters suggested that there should be an indication of what lead concentration is acceptable for the required follow up sample so that the PWS can troubleshoot if the lead test result is too high or if filters may need to be provided for longer. Several commenters thought that water systems should be permitted to sample as soon as practical after the replacement or disturbance and requested that EPA explain its reasoning for the 3- to 6-month delay in follow up sampling.
Agency Response
EPA agrees with commenters who noted that the wording of the proposal required water systems to take a tap sample after LSLR and other disturbances, even though tap sampling generally requires voluntary participation from the consumer. EPA updated the final rule to require the water system to give consumers the opportunity to have their water tested, but not actually require a sample to be taken should the consumer refuse.
EPA disagrees with commenters that follow-up tap sampling should not be included as risk mitigation after a full LSLR. Full LSLR is effective at reducing lead in drinking water, but replacement is also a disturbance that can cause particulate lead to be released. While flushing is beneficial in reducing lead levels, a follow up tap sample provides assurance that particulate lead has been cleared from internal plumbing or the aerator.
Some commenters suggested that there should be a lead concentration that, if exceeded in a tap sample, water systems can troubleshoot the problem while consumers continue drinking filtered water. EPA notes that while find-and-fix does not apply to post-LSLR tap samples, the consumer will be provided with the tap sample results.
Several commenters thought that water systems should be permitted to sample for lead as soon as practical after the disturbance and requested that EPA explain its reasoning for the 3- to 6-month delay in follow up tap sampling. EPA has retained the 3 to 6-month delay in tap sampling in the final rule because the purpose of the testing is to ensure lead levels have not remained elevated over time. Waiting at least three months before taking a tap sample allows the distribution system to stabilize after the disturbance. Also, please note that EPA increased the amount of time that systems are required to provide filters to customers from 3 months in the proposed rule to 6 months in the final rule. This change was made to ensure the customer does not run out of filter cartridges before a follow up tap sample indicates that lead levels have stabilized.
6.7 Goal-based LSLR after TLE
Summary of Comments
Commenters expressed a wide range of views on the goal-based LSLR program following a lead TLE. Some commenters supported the proposed requirement, noting that unlike the current rule, LSLR would not be a last-resort action for systems that exceed the lead action level. Some commenters believed that all systems, including small systems, should implement goal-based LSLR after exceeding the lead trigger level. Some commenters asked for EPA to set a federal goal LSLR rate in the final rule to reduce inconsistent implementation, and thus public health protection, from state to state. Others thought that EPA should set a minimum goal LSLR rate while states could set a higher goal rate. Some commenters took the opposite approach, suggesting that EPA set a maximum goal rate, such as 3 percent. Other commenters suggested that EPA assign goal rates in tiers, based on water system characteristics such as size or the proportion of unknowns versus known LSLs. Commenters recommended that EPA build more flexibilities into the rule to allow the water system and state to determine the goal rate. Some commenters suggested that the goal rate should take customer input into consideration.
Some commenters disagreed with the proposed language in under § 142.19(b) which would allow EPA to designate an alternative goal rate. Commenters expressed concerns that it would decrease regulatory certainty, which they view as an important part of advancing LSLR. If this language does remain in the final rule, one commenter said, EPA should further define or provide guidance on what would be considered an acceptable goal-based rate.
One commenter said that performing public education after failing to meet their LSLR goal rate, rather than issuing a violation, was appropriate because it acknowledges that full LSLR may be outside of the system's control. Conversely, some commenters claimed that the goal-based LSLR program should be more enforceable. One commenter thought that the public education requirements following failure to meet the goal LSLR rate are neither measurable nor protective of public health. Commenters reasoned that if a water system is triggered into LSLR, failing to meet the goal rate should allow for strict enforcement actions, such as a violation.
A few commenters believed that states would be unnecessarily burdened with back-and-forth negotiations with water systems to review and approve or designate alternative goal rates. Commenters requested that EPA provide additional clarity on how water systems will work with their state to set replacement rates if they exceed the lead trigger level. Some commenters noted a timing discrepancy where the state reviews and approves the water system's recommended goal rate. They requested that the final rule recognize the number of system plans that the state must review and the timing of the review process. One commenter said that many water systems will likely conduct LSLR in coordination with their infrastructure replacement programs anyways, rendering this requirement unnecessary and burdensome.
Commenters were concerned that implementing a goal-based LSLR program that may be in effect for a limited time (i.e., two monitoring periods) would be overly burdensome for the potential limited number of LSLRs that would result. Some commenters believed the LSLR requirement should be more stringent, have a longer required duration, or not be allowed to stop once started. Another commenter suggested that a system could stop goal-based LSLR once, but would have to continue its LSLR program until all LSLs are replaced should it exceed the trigger level a second time.
One commenter agreed that the goal-based rate should be included in the LSLR plan but thought it was unproductive to set a goal rate potentially years before it is ever used. This commenter suggested that EPA instead require the plan to be created within six months of the first TLE and implemented after the second TLE.
Several commenters expressed concerns that LSLR will pose challenges for some water systems and customers and requested that EPA provide funding to support goal-based LSLR. Some commenters noted that the goal-based LSLR program may have environmental justice implications because the program incentivizes water systems to prioritize wealthy neighborhoods whose residents are more likely able to pay to replace their portion of the LSL.
Some commenters believe LSLR should occur regardless of the 90[th] percentile lead level, with some suggesting replacement of 10 percent LSLs every three years for systems at or below the lead action level. One commenter said that water systems should be required to conduct mandatory LSLR after exceeding the lead trigger level. Some commenters requested that EPA reconsider the provision in the proposed rule that allows a water system to discontinue its goal-based LSLR program if the water system has two consecutive, annual monitoring periods with lead levels at or below the trigger level.
Other commenters did not agree with the addition of a new trigger level in the proposed rule and consequently do not support the goal-based LSLR requirements.
A commenter believed that the goal-based LSLR program should be limited to the system-owned portion of the LSL.
Agency Response
EPA disagrees with commenters suggesting that EPA should prescribe a national minimum goal LSLR rate. Because priorities, characteristics, financial, managerial and technical capacity, community characteristics and demographics vary from system to system, EPA found it to be most appropriate for the water system to recommend a feasible rate and for the state to approve it or set an alternate goal rate. The water system and state will have a better understanding about individual water system's characteristics to determine which goal rate is appropriate.
EPA also determined that a federal maximum goal rate is inappropriate. As noted in the previous paragraph, water systems with state approval are in the best position to establish a feasible goal rate in consideration of their financial, managerial, and technical capacity as well as community characteristics. A federal maximum would also be inconsistent with Section 1414(e) of the SDWA which provides that nothing in the SDWA "shall diminish any authority of a State or political subdivision to adopt or enforce any law of regulation respecting drinking water regulations or public water systems." See also 40 CFR 142.4. Some commenters noted that without a maximum goal rate, the proposed rule could result in water systems with goal LSLR rates above 3 percent scaling back replacement efforts as systems' lead levels increase from a lead TLE to a lead ALE. EPA does not agree that the goal and mandatory LSLR rates are comparable in the way suggested by commenters because they are two distinct requirements with different consequences for failing to achieve the rate. Additionally, EPA notes that the final rule does not prohibit a water system's goal rate from being greater than the mandatory LSLR rate of 3 percent. The LCRR requires that the mandatory replacement rate be set higher by the state if feasible. If the goal LSLR rate is set higher reflecting feasibility, it is possible that the mandatory rate could be set higher as well. Thus, EPA has retained the proposed requirements for the final rule.
Some commenters called for customer input to be incorporated into the LSLR rate. EPA notes that the water system may solicit customer input when determining the goal LSLR rate that it will recommend to the state in its LSLR plan. The final rule grants the state, however, authority to approve the goal rate or set an alternative rate it if finds one to be more appropriate.
EPA disagrees with a commenter's suggestion that the goal rate should be set after a TLE opposed to the proposed timeline where water system recommend the goal rate before the rule compliance period and the state reviews it within six months. The final rule is designed so water systems are prepared for LSLR requirements that apply in the event of a TLE in advance so they are ready to immediately begin LSLR should they exceed the lead trigger level. EPA sees this pre-planning as a critical component of efficient and timely LSLR.
EPA has not retained the provision allowing EPA to establish an alternative LSLR goal rate for the final rule under § 142.19(b). Allowing systems and states to set the goal rate will provide them most regulatory certainty and will best reflect system abilities and state priorities for goal-based LSLR.
EPA disagrees that all systems should implement a goal LSLR program under the final LCRR. EPA supports all efforts to replace LSLs; however, the goal LSLR program designed to target systems with higher lead levels. Also, it is not applicable to CWSs serving 10,000 or fewer people because they follow a separate compliance path under § 141.93. For more information on LSLR requirements for small systems, please see response to comment Section 7.6.
Some commenters expressed a desire for the goal-based LSLR program to be more enforceable. EPA notes that the LSLR requirements after a lead TLE were intended to facilitate proactive, not reactive LSLR programs. Given that the trigger level LSLR requirements are designed to be goals and not mandatory replacement requirements, EPA did not believe a strict enforcement action, such as a violation, was an appropriate penalty for failing to meet a goal replacement rate. However, EPA recognized there should be some action by water systems if the goal LSLR rate is not met. The proposed rule required water systems who did not conduct the minimum number of goal replacements to conduct enhanced public education about the LSLR program, which could increase customer interest resulting in additional LSLR and facilitate the water system to achieve the goal replacement rate in the following compliance year, especially given that ownership of the LSL is often split between the water system and the customer. A water system that fails to conduct the required public education would be in violation of the LCR. The proposal is consistent with recommendations EPA received from the National Drinking Water Advisory Council (NDWAC, 2015). EPA determined this structure is the appropriate and has retained it for the final rule.
EPA disagrees that the goal LSLR program is unnecessarily burdensome because, as one commenter claimed, water systems already conduct LSLR on their own in coordination with infrastructure work. EPA notes that while there are some water systems conducting LSLR in coordination with other system activities, not all water systems are conducting full LSLRs. Additionally, some states may approve LSLR goal rates that accomplish LSLR at a higher rate than would be conducted solely by coupling LSLR with infrastructure work.
In the final rule, EPA has provided additional clarity on the process and timing of setting a goal LSLR rate. The final rule contains additional regulatory text to require CWSs serving more than 10,000 people to include a goal rate recommendation in their LSLR plans. The state has six months to review and respond to that recommendation, either by approving it or designating another goal rate that the state deems to be more appropriate. EPA disagrees that a water system and state should wait to set a goal LSLR rate until after the lead trigger level is exceeded, as the time required to recommend, review, and approve or designate an alternative goal rate would make it more challenging for the system to plan and meet its annual LSLR goal while the annual replacement goal program is in effect. Although there is administrative burden to the state to review and approve or set an alternative goal rate, this is a one-time requirement for states. States may wish to establish a state level LSLR goal rate structure  -  based on system size, capacity, etc., to facilitate timely review of LSLR goal rates. Additionally, this requirement would not apply to CWSs serving 10,000 or fewer people or to NTNCWSs, significantly reducing the number of systems needing LSLR goal rate to be reviewed and approved.
EPA has maintained the minimum timeframe of two years for water systems to demonstrate lead levels at or below the lead trigger level before ceasing goal-based LSLR. EPA believes that two years of monitoring is an adequate amount of time for a system to demonstrate that they have achieved a stable reduction of lead levels. EPA disagrees that the final rule should require goal LSLR in perpetuity because that requirement would not reflect a system's ability to reduce lead levels with changes to CCT.
In response to commenters that do not support a goal-based LSLR program because they oppose an inclusion of a lead trigger level in the LCRR, please see response to comment Sections 3.0 and 19.1.
In response to commenters who expressed concerns that LSLR will pose challenges for some water systems and customers, including concerns that a goal-based LSLR program will have environmental justice implications, please see response to comment Section 6.2.
In response to comments that noted a timing discrepancy regarding state review of goal LSLR rates, EPA has clarified that states have a 6-month review timeframe for states to review and approve LSLR goal rates or, if appropriate, establish a different goal rate. Also please see response to comment Section 6.2.
In response to comments about mandatory LSLR, please see response to comment Section 6.8. In response to the comment suggesting mandatory LSLR occur after exceeding the lead trigger level, please see response to comment Section 19.
Regarding requests for guidance, EPA understands that rule guidance is a critical component to ensure the rule's effectiveness in protecting public health. The Agency intends to develop implementation guidance targeting the areas of the rule that are most likely to support compliance. In addition to guidance, EPA will also provide training and other supporting materials that will help states and water systems implement the revised rule and promote greater national consistency.
EPA disagrees that the final rule should limit the goal-based LSLR program to system-owned LSLs. For more information, please see response to topic 6.3.
6.8 Mandatory LSLR and Rate
LSLR Rate
Summary of Comments
Some commenters claimed that a 3 percent mandatory full LSLR rate is too burdensome, while others believed it is not stringent enough to protect public health and should be raised to 5, 7, 10, 15, or 20 percent. Other commenters believed that due to the differences in water system circumstances, the mandatory LSLR rate should be scaled based on factors such as system size, prevalence of LSLs, financial capacity, or affordability, while multiple commenters recommended that the final rule LSLR rates be consistent across all system sizes. Some commenters requested clarification in the final rule about the number of LSLs that need to be replaced per year and if that number could be recalculated.
Some commenters suggested that a mandatory LSLR rate should apply regardless of 90[th] percentile lead level, effectively requiring an LSLR program at all water systems. They stated that because LSLR eliminates the largest source of lead in drinking water, water systems should always conduct LSLR, regardless of 90[th] percentile lead level. Some thought that if a system has few enough LSLs in its inventory, it should be required to replace all LSLs. One commenter requested that water systems be allowed more time to comply with LSLR requirements, given the requirement for full replacements and the inclusion of lead status unknown and galvanized requiring replacement service lines.
Some commenters thought it appropriate that the proposal required mandatory LSLR until tap sample monitoring results tests at or below the lead action level for two consecutive years. One commenter, however, suggested that one year of monitoring at or below the action level, as required in the previous rule, is enough to permit a water system to stop mandatory LSLR. Other commenters thought that water systems should continue their mandatory LSLR program once started, regardless of future tap sampling results. Several commenters suggested that water systems could cease mandatory LSLR after sampling at or below the lead action level the first time, but exceeding the lead action level a second time should require continued LSLR until all have been replaced due to the system's inability to keep lead levels consistently low. Other commenters suggested that LSLR could cease when sampling shows lead levels at or below the trigger level or lower (e.g., 5 ug/L was suggested).
Several commenters suggested that in addition to establishing a replacement rate for LSLs, EPA should also establish a time limit (e.g., between 10 and 20 years) for replacement of all LSLs. Commenters stated that such a time limit would help ensure complete LSLR. One commenter added that EPA could give primacy agencies the authority to provide a variance for truly exceptional water systems (such as large cities with high numbers of LSLs) under the authorities in sections 1415 and 1416 of the SDWA, or pursuant to a consent decree with regulators.
One commenter asked if failure to achieve the mandatory 3 percent LSLR rate would be a treatment technique violation, while another commenter requested clarification on the requirements when a customer is unresponsive.
Agency Response
For the final rule, EPA retained the proposed requirement that water systems must annually replace 3 percent of LSLs after exceeding the action level and clarified how to calculate the number of LSLR with a new section under § 141.84(a)(7). EPA disagrees that 3 percent LSLR is too slow to protect public health, and disagrees that the reduction of the LSLR rate from 7 percent to 3 percent is backsliding. Because a treatment technique rule is not centered on a single compliance level, but rather on an integrated set of actions designed to reduce the level of exposure to a contaminant, the backsliding analysis for a treatment technique rule is based on an assessment of public health protection as a result of implementation of the rule as a whole, rather than a comparison of numerical benchmarks within the treatment technique rule. EPA has determined that the revisions to the LCR as a whole will result in a 5- to 73-fold increase in full LSLR investments (see the "Economic Analysis for the Final Lead and Copper Rule Revisions; USEPA, 2020b). Under the previous LCR, many water systems who exceeded the lead AL never conducted LSLR because of potential scenarios that allowed systems to delay initiation of LSLR. For example, water systems without CCT may have been required to first conduct a study, obtain state approval for the recommended CCT, and obtain state approved OWQPs before LSLR began. Because a CCT study generally takes longer than one year to complete, many water systems were able to conduct two rounds of tap sampling at or below the action level and were not required to complete the CCT study. Subsequently, some water systems completed two rounds of tap sampling at or below the action level and replaced few or no LSLs. The final LCRR requires all water systems who exceed the TL to begin a goal-based LSLR program and those who exceed the lead AL to begin LSLR. Also, water systems must prepare an LSL inventory prior to the compliance effective date and systems must conduct four rounds (two years) of semi-annual tap sampling at or below the action level. This difference is also due to the previous rule not requiring full replacement of LSLs and allowing test-out of LSLs avoiding actual replacement. In the final rule, regardless of 90[th] percentile lead level, water systems will be required to complete customer-initiated LSLR. Additionally, LSLR programs will be initiated at systems that exceed the lead trigger level of 10 ug/L versus 15 ug/L in the previous LCR. The requirement for all systems to prepare an LSLR plan will avoid delays in initiating LSLR that have hampered progress under the previous rule. Furthermore, the more stringent sampling requirements in the final rule will better identify elevated lead levels, resulting in more systems exceeding the lead trigger and action levels and replacing LSLs. An emphasis on full LSLR over partial LSLR and test-outs, as well as the inclusion of galvanized requiring replacement and lead status unknown service lines in the LSLR rate calculation, will lead to further replacement of leaded drinking water infrastructure relative to implementation of LSLR under the current rule. The extended implementation of LSLR programs to a minimum of two years instead of one year will also increase the number of LSLR conducted and avoid inefficiencies of LSLR programs that operate in a manner where the program experiences several starts and stops to their programs over many years, which is especially relevant for systems whose lead 90[th] percentile levels hover around the lead trigger or action levels. These significant rule changes led EPA to reduce the mandatory LSLR rate from 7 percent to a feasible 3 percent national mandatory minimum LSLR rate, while retaining a provision from the previous rule that requires states to increase a system's LSLR rate if feasible. Given these numerous factors, EPA disagrees that the final rule backslides relative to the previous rule, whether considered as overall public health protection or number of LSLs being replaced.
Some commenters believe an annual rate of 3 percent full LSLR is too stringent for water systems to achieve. EPA disagrees, noting that the previous rule required 7 percent annual LSLR (partial LSLR and test-outs counted towards the LSLR rate in the previous rule but not the final LCRR). EPA highlights that under the previous LCR, most water systems have not in practice created a complete materials evaluation of their distribution system, nor executed an LSLR program until required to do so after a lead ALE. Thus, water systems that exceeded the lead action level had to first spend valuable time completing their LSL materials evaluation and creating an LSLR program from scratch, which can make it more difficult to achieve the number of replacements required under the annual LSLR rate. The final rule helps water systems overcome these challenges by requiring an inventory and LSLR plan to be developed within three years after the rule promulgation date, allowing for all efforts after a lead TLE or ALE to be devoted solely to achieving the minimum required replacements. In addition, the water system may count towards its replacement rate those LSLs which are replaced on an ongoing basis, regardless of a system's 90[th] percentile lead level, such as in coordination with other infrastructure activities, as a result of customer-initiated replacement, or from a system's goal-based LSLR program if it had exceeded the lead trigger level before the action level. The water system, therefore, may have an existing baseline of ongoing full LSLRs that may be used to meet the 3 percent minimum annually required LSLR.
One commenter thought that the LSLR rate should be consistent across systems of all sizes. EPA notes that in the final rule, small systems LSLR requirements apply under the small system flexibility provision in § 141.93. Please see response to comment Section 7.6 for an explanation of the LSLR rate applicable to small systems. EPA agrees with commenters who suggested that states should have the ability to set the mandatory LSLR rate so it is able to account for differences between water systems, such as system size, prevalence of LSLs, financial capacity, affordability, and other local factors, if these factors are used to determine feasibility. EPA notes that in the final rule the federal LSLR rate of 3 percent is a minimum, and that states are required to set a higher LSLR rate when feasible for the water system. Regarding the goal LSLR rate, the final rule allows the state to set goal LSLR rates which could also include consideration of the factors described by the commenters.
EPA disagrees with commenters who requested that water systems be given time to adjust to the increase in LSLR rate once the action level is exceeded. As previously noted, 3 percent full LSLR rate per year is feasible. Additionally, the LSLR plan requires proactive planning so systems will be ready to respond in case of an ALE. The LSLR plan will detail the standard operating procedures, planned funding channels, and other LSLR program details to allow for fast startup and efficient implementation of the LSLR program.
Variances are governed by Section 1415 of the SDWA and 40 CFR part 142 of the SDWA. The final rule also includes provisions which, under certain conditions, water systems can cease LSLR rather than seek a variance.
EPA notes that failing to meet the mandatory LSLR rate would be a treatment technique violation, unless the provision under § 141.84(g)(7) to document customer refusals or non-responses is utilized. For more information, see response to comment Section 6.11.
Agency Response to Comments about States Setting a Higher LSLR Rate
Summary of Comments
EPA received several comments regarding the requirement for primacy agencies to set a higher LSLR rate for water systems when feasible. A few commenters requested that EPA remove this requirement. Others requested that EPA provide guidance or criteria for when a higher LSLR rate is feasible. One commenter requested that EPA cap the rate that primacy agencies can require. Others recommended that the wording of the requirement be changed to include other considerations in establishing the rate, such as technical, managerial, and financial capacity.
Agency Response
EPA disagrees that the final rule should not require states to set a higher LSLR rate where feasible and notes that this has been a part of the LCR since 1991. This provision is especially relevant for water systems with relatively small proportion of LSLs to total service lines, with the capacity to replace more than the minimum 3 percent. Other commenters suggested EPA broaden this category beyond what is "feasible" to include factors such as "technical, managerial, and financial capacity." EPA notes that these factors potentially contribute to feasibility and thus may be considered by states when determining if a higher LSLR rate is feasible. EPA disagrees that the final rule should set an upper limit to the LSLR rate set by the state. EPA notes, for example, there may be large water systems with only a few LSLs were 100 percent LSLR annual rate is feasible. Moreover, EPA cannot set a maximum LSLR rate because nothing in the SDWA or EPA's implementing regulations diminishes the authority of states to adopt or enforce more stringent standards. See SDWA Section 1414(e) and 40 CFR 142.4.
In response to comments requesting guidance for states about when states should set a higher mandatory LSLR rate, EPA understands that rule guidance is a critical component to ensure the rule's effectiveness in protecting public health. The Agency intends to develop implementation guidance targeting the areas of the rule that are most likely to support compliance. In addition to guidance, EPA will also provide training and other supporting materials that will help states and water systems implement the revised rule and promote greater national consistency.
Mandatory, Proactive LSLR
Summary of Comments
Some commenters believed that LSLR should be required regardless of lead 90[th] percentile levels, or that LSLR should not cease once the water system begins replacement following its first lead ALE.
Agency Response
EPA strongly encourages all efforts to replace LSLs proactively, including when system-wide lead levels are low. EPA disagrees, however, that the final rule should require all water systems to proactively remove all LSLs. While the small system flexibility allows small water systems to opt-into a compliance path that requires complete LSLR, EPA does not agree this is appropriate nor feasible for medium and large systems. Small water systems that exceed the lead action level and choose the LSLR compliance path will rely on complete LSLR, not CCT, to reduce lead levels in drinking water, which is why it is necessary for these systems to commit to replace all LSLs. Moreover, small systems that conduct LSLR will have elected that as a compliance option, and therefore it can be assumed it would be feasible for those systems. For non-small systems, the final rule structure of the rule has been designed to ramp up LSLR requirements as lead levels increase, and conversely, reduce these requirements as system-wide lead levels decrease. In addition, medium and large systems will be installing and maintaining CCT to reduce system-wide lead levels. EPA notes that although the mandatory LSLR program is not in effect at or below the lead action level, water systems must complete customer-initiated LSLR at all times and implement a goal-based LSLR program after a lead trigger exceedance, meaning that LSLR will occur even when systems are below the lead action level.
Rolling Average LSLR Rate
Summary of Comments
Some commenters requested that the mandatory LSLR rate be calculated as a rolling average across multiple years. There could be instances, they pointed out, where an initial spike in customer demand for LSLR could pressure the system to replace the minimum number of LSLs required to ensure enough willing customer participants remain to comply with mandatory LSLR in later years of the LSLR program.
Agency Response
The Agency agrees that a rolling average construct is appropriate for the final rule. As commenters mentioned, a water system may receive heightened customer interest in LSLR immediately following a lead AL exceedance. Replacing more than 3% LSLs in the first year of an LSLR program under a rolling average rate is more protective of public health than a fixed rate of 3%, which could incentivize water systems to replace the minimum number of LSLs in the first year to ensure there is sufficient customer participation to achieve 3% in the second year. EPA notes that while the final rule requires states to set the mandatory LSLR rate higher than 3% where feasible, the short-term ability of a water system to replace more than 3% immediately following a lead AL exceedance when customer interest is highest is not necessarily indicative of long-term feasibility. EPA also notes that a rolling average approach could also provide flexibility to water systems. While not mentioned by commenters, some systems may need time to immediately secure have access to LSLR financing following a lead AL exceedance, and therefore would face increased challenges to meet the mandatory 3% LSLR in the first year. These challenges could be compounded where the water system experiences delays securing financing and then faces, as commenters noted in the context of customer-initiated replacement, construction moratoriums in the winter months. The rolling average approach could alleviate these challenges. EPA acknowledges that while a rolling average would require replacement of the same number of LSLs as a fixed rate would require, using the rolling average approach to delay LSLR program implementation could cause some customers to wait longer for their LSL to be replaced. EPA recommends that water systems attempt to begin LSLR as quickly as possible, and notes that their LSLR plan should facilitate timely implementation of other components of their LSLR program. EPA also suggests that water systems begin replacing LSLs where some financing may be immediately available, for example, if full replacement of system-owned LSLs can be achieved with existing funding.
LSLR Funding
Summary of Comments
Commenters were concerned that some water systems and customers lack the funding to fully replace LSLs. Commenters requested that financial support or loan forgiveness be offered to facilitate LSLR. Some commenters suggested that the proposed rule would create environmental justice concerns because it incentivizes water systems to prioritize LSLR in wealthy neighborhoods whose residents are more likely able to pay to replace their portion of the LSL. Two commenters stated that water systems should be required to pay the full cost of LSLR so that a customer's health risk from lead in drinking water is not tied to their ability to pay for LSLR.
Agency Response
For commenters concerned that some water systems and customers will lack funding required to replace LSLs and requested that financial support or loan forgiveness be offered for such systems, please see response to comment Section 6.1 for examples of federally funded loan and grant programs for LSLR. For information about creating an LSLR funding strategy in the LSLR plan, please see response to comment Section 6.2. For commenters who wrote about potential environmental justice concerns in the proposed rule regarding the ability to pay for customer-owned LSLR, please see response to comment Section 6.2. For commenters who believed the final LCR should require water systems to fund customer-owned LSLR, please see response to Section 6.10.
Timing of LSLR Requirements
Summary of Comments
One commenter expressed concern that "the proposed rule's allowance of a 3-year period to comply can be used by systems failing to meet the current 7% replacement rate to justify an additional 3-year delay in LSLR," recommending that EPA require compliance with the previous LCR during the 3-year period while an LSL inventory and replacement plan are developed under the final LCRR.
Agency Response
EPA notes that the previous LCR, LSLR requirements will apply during the 3-year period before the final rule`s compliance date while the LSL inventory and replacement plan are developed. See Section 141.80 of the final rule.
6.9 Partial LSLR
Summary of Comments
Several commenters suggested that the final rule include an outright ban on water systems conducting partial LSLR under all circumstances. Commenters noted that the practice can cause lead levels to be temporarily elevated, with some commenters citing studies demonstrating such. Some commenters highlighted that full LSLR makes financial sense, noting the cost efficiency of replacing both portions simultaneously, as well as the health benefits of full LSLR versus partial LSLR. Some commenters expressed concern that given the cost of customer-owned LSLR, allowing partial LSLR has the potential to disproportionately impact low-income households and communities of color if policies require customers to self-finance replacement of the portion they own. One commenter suggested that partial LSLR should be allowed only when a water system obtains documentation that customer refusal to replace their portion was not due to financial hardship. Some commenters requested EPA make funding available to assist water systems to conduct full LSLR. One commenter suggested that water systems should be required to investigate plumbing codes or utility history to determine if ownership of the LSL is truly split.
Some commenters agreed that partial LSLR should be allowed for emergencies but requested that the final rule include clearly-defined criteria for the circumstances that partial replacements are allowed. Several commenters thought that all emergency partial replacements should be completed as full replacements within 30 days of the partial replacement. Some commenters said that partial LSLR should only be allowed for water systems that lack the funding to conduct full LSLR.
Many commenters expressed support for EPA's proposal as is, which does not ban partial LSLR and ensures that when a partial LSLR does occur, standardized risk mitigation steps are taken. These commenters believed that a total ban on partial replacements is not feasible. For example, one commenter said that "planned water main replacement project may result in a new alignment or spacing of the main, necessitating replacement of at least part of a lead service line."
Other commenters asked for partial LSLR to count towards replacement rates.
Agency Response
EPA discourages partial LSLR due to its potential to temporarily increase lead levels in drinking water, however the Agency disagrees that the final rule should include an outright ban on the practice because a ban would be infeasible. As commenters noted, there may be instances where partial replacement is unavoidable, for example a service line that requires emergency repair where the customer does not agree to replace the portion he or she owns for any reason. In another scenario, water systems conducting planned main replacement may require removal of at least a portion of the LSL due to the alignment or spacing requirements to connect the new main with existing service lines. In this case, which would be considered planned infrastructure work, the water system must notify the owner of any connected non-system owned LSL, their agent, and any non-owner resident and offer to replace the non-system owned portion. The LCRR does not require the customer to agree to replace his or her portion and the LCRR does not require the system to bear the cost of the replacement.
The final rule also mandates that standardized risk mitigation steps are taken after partial LSLR. These steps include delivery of information about lead in drinking water to the customer, flushing instructions, an ANSI-certified filter for lead removal or POU device with six months of replacement cartridges, and an offer to provide a follow up tap sample for lead between three and six months following the partial replacement.
Although the final rule does not ban partial LSLR, it was designed to disincentivize the practice. Water systems do not receive replacement credit for partial LSLR as they do in the previous rule, meaning that partial LSLR will likely only occur when there is an emergency repair or following planned infrastructure work where partial replacement is necessary. To further reduce the likelihood of partial LSLR, the final rule includes an added requirement to the LSLR plan that requires water systems to investigate ways to accommodate customers who wish to have the portion of the LSL they own replaced but are unable to afford the LSLR. This provision could make full LSLR more accessible to customers. EPA disagrees that water systems should be allowed to conduct partial LSLR only after receiving documentation from the customer that their refusal is not based on affordability, noting that systems may not receive customer consent to have their personal financial circumstances documented. In response to comments about LSLR and environmental justice, please see response to comment Section 6.2.
EPA disagrees that the final rule should define what constitutes an emergency where partial LSLR are allowed. Given the wide range of scenarios that could apply, EPA may fail to consider certain scenarios and define these emergencies too narrowly, in effect prohibiting partial LSLR in some cases where it is not feasible to conduct a full LSLR.
In response to comments about funding for LSLR, please see response to comment Section 6.1.
EPA encourages but chose to not require water systems to investigate plumbing codes or utility history to determine if ownership of the LSL is truly split. EPA recognizes that the history of service line ownership may not always be clear, but the question of service line ownership and/or division of responsibilities between the water system and the customer under current state law should be clear and therefore, EPA does not think a federal requirement is needed to require systems to determine the basis of the current state law. Water systems may choose to conduct such a review as part of their LSLR plan. For more information about the LSLR plan, please see response to comment Section 6.2.
For more information about the split ownership of LSLs, please see response to comment Section 6.10.
6.10 Issues of Private Property and Ownership/Control
Summary of Comments
Numerous commenters expressed concerns about the ability of water systems to comply with the proposed LSLR plan and full LSLR requirements given the potential for split ownership of the LSL between the water system and the customer. Commenters noted that in some cases, the system does not own any portion of the LSL. Furthermore, many commenters expressed that they lack legal authority to conduct LSLR of a customer-owned LSL and highlighted potential liability concerns associated with conducting construction or maintenance activities on private property. One commenter requested clarification of the requirement for water systems to "offer" to replace the customer-owned portion. Some commenters said the EPA should not require water systems to access private property or conduct LSLR on the customer-owned portion. One commenter suggested that EPA consider allowing a waiver of goal-based or mandatory replacement if (1) the water system establishes a complete inventory of system-owned LSLs, (2) the inventory indicates absence of system-owned LSLs, and (3) the system performs good faith effort to notify and educate affected customers with known LSLs in their property that is then certified by the state. Another commenter suggested that water systems should investigate and publish state rules or ordinances that affect their ability to conduct LSLR on private property. Some commenters requested guidance on how to comply with the LSLR plan and full LSLR requirements given split ownership of the LSL, or where the system does not own any portion of the LSL.
EPA received several comments concerning funding of the replacement of the customer-owned portion of the LSL. Many commenters supported the proposed rule language that water systems are not required to bear the cost of replacement of the portion of the LSL not owned by the water system. Moreover, numerous commenters stated that local or state ordinances may prohibit some water systems from using public funding or rate revenue to help fund customer-owned LSLR. Some commenters called for EPA to provide funding to assist the customer to replace their portion. Other commenters stated that customers should not be required to pay to replace their LSL due to potential environmental justice concerns that may arise when a customer wants but is unable to afford to replace their LSL, resulting in a partial LSLR or delayed full LSLR.
A few commenters suggested that customer-owned LSLR, as well as lead-based premise plumbing, could be covered through state enacted real-estate legislation where information about the presence of an LSL or leaded premise plumbing are required to be disclosed before a sale transaction.
A commenter raised the point that in addition to LSLs, premise plumbing and fixtures inside the home can be potential sources of lead in drinking water. One commenter believed water systems should not be required to provide filters after the customer performs a partial or full LSLR, questioning why systems should be obligated to provide them given the customer initiating the work, and noting that the remaining lead source would be premise plumbing.
Agency Response
Given the potential for water system activities to affect lead in drinking water, even where an LSL is owned solely by the customer, the final LCRR does not waive water system requirements where the customer-owned portion is affected. This is consistent with EPA's approach to the control of lead in drinking water since 1991, which has required water systems to take actions with respect to service lines and premise plumbing not owned by the system  -  the requirement to optimize CCT even where the system owns no LSLs, and the requirement in § 141.84(d)(1) to notify and offer to replace, at customer's expense, non-system owned LSLs. Similarly, water system activities such as replacing a gooseneck or water meter can disturb an LSL owned entirely by the customer. Fully removing LSLs is a critical component to public health improvements of the LCRR. When present, LSLs are the largest contributor to lead in drinking water (Sandvig et al., 2008). EPA acknowledges the shared responsibility between the customer and water system for lead in drinking water, therefore the final rule requires water systems to conduct activities to engage customers in an effort to achieve lead reduction goals, while at the same time not holding water systems responsible when customers are not willing or able to participate in LSLR. For more information on customer participation and refusals, please see response to comment Section 6.11.
Commenters noted that systems may lack authority to enter private property to replace LSLs and highlighted possible liability concerns associated with doing work on private property. Many communities across the nation are currently conducting full LSLR and there is a long history of public utilities conducting work on private property. Therefore, EPA has determined that it is feasible for them to manage liability concerns. One commenter requested clarification as to what it means for the water system to "offer" to replace the customer-owned LSL. EPA notes that this language is used in the existing rule. Although allowed, this language does not obligate the water system to fund customer-owned LSLR or to use system personnel to perform the work, it does require the PWS to "offer" to replace the LSL. While "offer" is not defined, EPA notes that it could mean the PWS offers to replace the line or facilitates coordination between the PWS's contractor and the customer, or it may involve assisting the customer to find a private contractor to perform the work and coordinating with the private contractor to perform a simultaneous full replacement. In response to commenter requests for additional guidance, EPA understands that rule guidance is a critical component to ensure the rule's effectiveness in protecting public health. The Agency intends to develop implementation guidance targeting the areas of the rule that are most likely to support compliance. In addition to guidance, EPA will also provide training and other supporting materials that will help states and water systems implement the revised rule and promote greater national consistency.
EPA notes that nothing in the final rule requires or specifies a payment strategy for LSLR. EPA acknowledges that funding customer-owned LSLR may require some research and planning, and yet several water systems across the country have conducted full LSLR even where the system doesn't own the LSL or owns only a portion of the LSL as outlined in EPA's "Strategies for Achieving Full Lead Service Line Replacement" (USEPA, 2019). Thus, the final LCRR requires water systems to investigate possible funding sources for LSLR, including the customer-owned portion, in their LSLR plan. This approach ensures water systems have a strategy for funding LSLR in advance before required to conduct a goal rate or mandatory LSLR program after exceeding the lead trigger or action levels. Due to comments that noted potential environmental justice concerns with the proposed rule, EPA added a provision to the final rule requiring water systems to also create a strategy to accommodate customers that want but are unable to afford replacement of the LSL they own. EPA determined that water systems with a funding strategy will be able to begin replacing LSLs immediately rather than spend weeks or months investigating potential funding sources, giving the water system adequate time to meet the minimum number of LSLR required under the goal or mandatory LSLR rate. EPA encourages water systems to research federal funding sources, such as EPA's DWSRF, the WIIN Act, Housing and Urban Development's Community Development Block Grants. EPA also encourages water systems to investigate their legal authority to fund or perform work on the customer-owned LSL, or if rate revenue can be used for customer-owned LSLR. EPA is not requiring in the final rule that water systems investigate this or any other specific funding source because it may not be necessary as part of the system's strategy. For example, the water system may find that federal funding sources cover the costs for LSLR, avoiding the need for water systems to investigate if they have the authority to fund the work with rate revenue. For more information about the LSLR plan, please see response to comment Section 6.2.
Regarding comments questioning why a water system should provide the customer with a filter after a customer-requested LSLR, especially if the entire LSL is customer-owned. As indicated above, the LCR has always required water systems to address lead in non-system owned materials. Water systems are in the best position to educate their customers about the short-term risks following the replacement and to provide mitigation measures as a part of their responsibilities to assure drinking water quality for their customers. Even when the water system is below the lead action level, the system will be involved in a customer-initiated LSLR because the new service line will be connected to the water main, which is under the system's control and ownership. Additionally, the water system may need to temporarily shut off the water service to the residence while the replacement is being completed. Furthermore, the customer's actions benefit the system, as removal of LSLs helps to avoid potential TLE or ALEs in the future, triggering rule requirements for the system. Finally, the customer may not be aware of the potential for service line disturbance or replacement to cause lead levels to be temporarily elevated until learning from the water system and receiving the filters. For more information about risk mitigation procedures following LSLR, please review response to comment Section 6.6.
EPA agrees that older premise plumbing and fixtures may contribute to lead in drinking water. EPA notes that the final LCRR contains find-and-fix requirements for the water system to investigate potential causes of tap samples testing higher than 15 ppb (see response to comment Section 13).
EPA notes that it does not have authority under the SDWA to regulate real estate transactions to require sellers to disclose the presence of an LSL or require replacement upon sale of a home.
For more information about including customer-owned LSLs into the LSLR rate, please see response to comment Section 6.
6.11 Mechanism to Cease LSLR by Documenting Customer Refusals
Summary of Comments
Many commenters noted the challenges of convincing customers to replace their portion of the LSL. One commenter said that even when funding is made available to customers through grants or loans, they may still refuse to have their portion replaced. Another commenter noted in their experience, the average customer participation rate for LSLR was only 24.7 percent. One commenter said that water systems should not be required to replace a customer-owned LSL if the customer objects.
As proposed, failure to meet the mandatory LSLR rate would require the water system to receive a written signature from each customer served by an LSL to document refusals for LSLR on the customer-owned portion. Numerous commenters noted that customers may not sign official documents or even respond to water system outreach efforts. One commenter noted that reaching the customer to obtain a signature could be especially difficult where the LSL serves a vacant home or where a residence is not owner-occupied. Commenters expressed concern that the proposed provision requiring signatures refusing LSLR would result in noncompliance of meeting LSLR goals and/or mandatory LSLR rates under the proposed requirements in §141.84(f) and §141.84(g). Commenters recommended EPA provide alternative ways to document customer refusals, such as providing a record of attempts to engage the customers. A few commenters believed that individual customer refusals should count towards the LSLR rate.
A few commenters suggested that water systems should still be subject to full LSLR requirements, even if customers do not agree to full LSLR. The proposed mechanism, commenters said, "allows water systems to do no LSLR if they can convince residents to refuse replacement." Thus, these commenters believed the proposed requirement to obtain customer refusals to conduct LSLR should not be included in the final rule.
Agency Response
EPA acknowledges that some customers may not agree to provide written signatures or respond to the water system's LSLR communication efforts, especially if the LSL serves a vacant or infrequently occupied home where the customer is not readily available. EPA agrees that compliance should be based on the effort to reach the customer to obtain a refusal, and that the water system should not be penalized as a result of customer actions. In response to comments, the final rule expands what can count as a "documented refusal." In addition to written signatures, the final rule includes verbal refusals or two non-responses from the customer after a good faith effort to reach the customer. This will ensure that the water system has engaged all potential customers but can remain in compliance despite customer non-response or refusal actions.
EPA disagrees that individual customer refusals should count towards the LSLR rate because this could impede progress towards LSLR. Moreover, non-consenting customers at a location could move and be replaced by consenting customers over time. The customer refusal provision is intended to be used at the end of an LSLR program when there may be a few remaining customers who refuse LSLR. If there are additional LSLs or galvanized requiring replacement service lines in the inventory, the water system must attempt to reach those customers to conduct an LSLR.
EPA disagrees that the customer refusal provision should be removed from the final rule. EPA notes that the Agency lacks the authority in an NPDWR under SDWA to require customers to replace their LSLs. Despite a water system's best attempts to identify potential funding sources and engage the customer for LSLR, the water system may encounter customers who refuse LSLR, even when provided at no cost to the customer. EPA has therefore maintained the proposed provision that allows water systems to remain in compliance with LSLR requirements despite potential customer refusals. For the final rule, EPA is requiring in § 141.84(g)(7) that, should the water system exceed the lead action level again, it must reach out to all customers with an LSL or galvanized requiring replacement service line, not just those where there has been a change in ownership as proposed. Even though a customer may have refused previously, the customer's financial circumstances may have changed since the previous time the lead action level was exceeded.
Regarding whether customer refusals should be included as part of the goal-based LSLR program in § 141.84(f), EPA points out that failure to meet the goal rate is not a violation. Failure to meet the goal LSLR rate will require the water system to start a public education program to encourage customer participation in the system's LSLR program if they do not meet their annual LSLR goal. Increased outreach may lead to some customers who in the past refused LSLR or did not respond to system outreach to agree to LSLR in the future. Avoiding these public education measures would be a missed opportunity to engage and inform the refusing customers about the benefits of full LSLR. Therefore, EPA does not find it appropriate to extend the customer refusal mechanism to the goal LSLR program.
References
ANSI. (November 1, 2017). Replacement and Flushing of Lead Service Lines. AWWA C810-17 43810. First Edition. Denver, CO: AWWA, 2017.
Michigan Department of Environment, Great Lakes, and Energy (EGLE). 2019. Lead and Copper Rule. Available online at: https://www.michigan.gov/egle/0,9429,7-135-3313_3675_3691-9677--,00.html.
NDWAC Lead and Copper Working Group. (2015). Report of the Lead and Copper Working Group to the National Drinking Water Advisory Council -- Final. Retrieved from: https://www.epa.gov/sites/production/files/2016-01/documents/ndwaclcrwgfinalreportaug2015.pdf.
Sandvig, A., P. Kwan, G. Kirmeyer, B. Maynard, D. Mast, R.R. Trussell, S. Trussell, A. Cantor, and A. Prescott. 2008. Contribution of Service Line and Plumbing Fixtures to Lead and Copper Rule Compliance Issues. Denver, Colo.: AWWA Water Research Foundation 3018.
State of California. 2016. Public water systems: lead user service lines. SB-1398.
United States Environmental Protection Agency (USEPA). 2011. Science Advisory Board Drinking Water Committee Augmented for the Review of the Effectiveness of Partial Lead Service Line Replacements. Retrieved from: https://www.epa.gov/sites/production/files/2015-09/documents/sab_evaluation_partial_lead_service_lines_epa-sab-11-015.pdf.
USEPA. 2019. Strategies to Achieve Full Lead Service Line Replacement. EPA 810-R-19-003. October 2019. https://www.epa.gov/sites/production/files/2019-10/documents/strategies_to_achieve_full_lead_service_line_replacement_10_09_19.pdf.
USEPA. 2020a. Use of Lead Free Pipes, Fittings, Fixtures, Solder, and Flux for Drinking Water; Final Rule. Federal Register 85(170):54235. September 1, 2020. https://www.govinfo.gov/content/pkg/FR-2020-09-01/pdf/2020-16869.pdf.
USEPA. 2020b. Economic Analysis for the Final Lead and Copper Rule Revisions.
WRF, 2017. Project #4351: Evaluation of Lead Service Line Lining and Coating Technologies. ISBN 978-1-
60573-293-0.
7 Small System Flexibilities
Background
In the proposed rule, EPA requested comment on the small systems flexibilities, specifically, EPA requested comment on whether:
This flexibility is needed by systems serving between 3,301 and 10,000 persons and whether a different threshold is more appropriate.
Different flexibilities would be more appropriate for small systems whether defined as water systems serving 10,000 or fewer persons or 3,300 or fewer persons.
EPA received many comments on the proposed requirements in § 141.93 - Small Water System Compliance Flexibility. EPA received comments both in support and opposition to the proposed compliance option flexibilities, comments regarding the small systems definition, as well as the compliance flexibility options -- corrosion control treatment (CCT), lead service line replacement (LSLR), point-of-use-device (POU) device and replacement of lead-bearing plumbing. EPA also received many comments regarding the technical, managerial, and financial capacity of small systems and the timing and implementation of the compliance flexibilities.
7.1 General Comments
Summary of Comments
A few commenters suggested that the small system compliance option flexibilities be extended to all systems subject to the Lead and Copper Rule revisions (LCRR). The commenters stated that if the compliance options adequately protect public health, the compliance option flexibilities should be made available to any system. Two of these commenters stated that large systems with a small number of lead service lines (LSLs) may want to use the same flexibilities. Another one of these commenters noted that the small system flexibilities would be helpful to medium and large systems that want to explore alternatives to optimized corrosion control treatment (OCCT). This commenter stated that allowing flexible compliance options for all systems might provide incentives to accelerate LSL removal.
Agency Response
The Lead and Copper Rule (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 public water systems (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). System operators that do not already have it may be required to obtain advanced certification to properly operate and maintain OCCT.
Small community water systems (CWSs) and non-transient, non-community water systems (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 PWSs face challenges in reliably providing safe drinking water to their customers and consistently meeting the requirements of the Safe Drinking Water Act (SDWA) and the National Primary Drinking Water Regulations (NPDWRs) (USEPA, 2011). Long-term compliance challenges affect public health protection. The National Drinking Water Advisory Council Small Systems Implementation Working Group in its 2000 report identified the following challenges to small water systems:
 Aging water delivery infrastructure.
 Current and future compliance with treatment standards.
 Source water quantity, quality, and protection.
 Development of technical, managerial, and financial capacity.
 Availability and affordability of financing.
 Water affordability and related pricing issues.
 Long-term and least cost planning.
 Employee training and certification.
 Local policies and parochial cultures.
 Competing or differing agendas and priorities among agencies.
 Changing demographics and service population growth or decline.
 Availability of low cost and low maintenance technologies.
 Isolation or lack of geographic accessibility.
 Language or cultural barriers to effective communications.
 Managing information and setting priorities.