EPA disagrees with allowing for exemptions based on low or non-detected lead levels, system lead 90[th] percentile level, LSL status, construction dates earlier than 2014, and with comments that stated there is no benefit gained from repeat sampling. Lead levels at an outlet or within a building have been shown to vary with repeat testing, with lead levels at one outlet not necessarily characterizing lead levels at other others in the building. Therefore, exempting water systems from testing in facilities based on one instance of negative lead results from limited outlets is inappropriate. Using the lead action level as a criterion for reduced testing is also inappropriate, as the action level is used to evaluate the effectiveness of system-wide CCT and is not a health-based level. Furthermore, as noted in the response to comment Section 12.1, individual outlets (e.g., water fountains) can leach lead even when a water system has OCCT. Likewise, absence of an LSL does not necessarily indicate absence of lead risk within a building. The requirements of §141.92 are part of a targeted public education effort to educate schools and child care facilities and their users of the risks from lead in premise plumbing the importance of testing for lead in drinking water, and to help them make decisions to mitigate lead risks.
EPA has retained the proposed requirement to exempt CWSs from sampling in schools and child care facilities constructed after 2014 (consistent with Section 1417 of the SDWA), as these facilities will have been constructed with lead free plumbing components. Prior to amendment of Section 1417 of the SDWA by the Reduction of Lead in Drinking Water Act, fixtures could contain up to 8 percent of lead by weighted average and be classified as lead free (USEPA, 2020b). Allowing earlier exemption dates (such as the 1986 lead solder ban) would therefore be less protective of public health. EPA notes comments that some states, such as California, adopted standards consistent with Section 1417 of the SDWA earlier than 2014. Therefore, the Agency revised §141.92 to require CWSs to sample in facilities "constructed prior to January 1, 2014 or the date the State adopted standards that meet the definition of lead free in accordance with Section 1417 of the Safe Drinking Water Act, as amended by the Reduction of Lead in Drinking Water Act" to accommodate date differences that precede 2014 but used an equally protective standard. While one commenter expressed concern regarding faulty installation of lead free fixtures, EPA notes that replacement of drinking water outlets with lead free components alone would not meet this exemption, as older premise plumbing may contribute to lead risks within the facility. Likewise, exempting schools and child care facilities that have "no lead" but do not meet the exemption date in §141.92 is inappropriate due to the lead content previously allowed in certified lead free plumbing products. EPA notes the concern that exempting buildings built after 2014 may require additional tracking. The Agency anticipates that exempting these buildings will reduce the overall CWS burden relative to any additional tracking or data management efforts.
EPA acknowledges comments regarding the applicability of §141.92 and §141.86 to home-based child care facilities. Samples collected under §141.92 cannot be substituted for samples collected under §141.86 for compliance monitoring due to differences in sampling protocol. It is possible for a home-based child care facility to be licensed by the state and for the facility to also meet the tiering criteria for compliance monitoring in §141.86. While "homeowner fatigue" may be a potential concern at sites that are eligible to be sampled under §141.92 and are also sampled under §141.86, EPA notes that any school or child care facility may decline sampling under §141.92 and it will not impact CWS compliance with the requirements of §141.92. Furthermore, the Agency disagrees that more opportunities for tap sampling will erode public trust and notes that the accompanying public education materials provided under §141.92(a) explain the importance and purpose of sampling schools and child care facilities. EPA reiterates that the requirements of §141.92 do not apply to home-based child care facilities that are not licensed by the state. Please see the response to comment Section 9 for more information on tap sampling tiering.
EPA notes that commenters requested clarification on the applicability of §141.92 to consecutive systems. The Agency has revised §141.92 to state that CWSs "must conduct directed public education and lead monitoring to the schools and child care facilities they serve" to clarify that CWSs are required to sample in schools and child care facilities that they provide water to, regardless if they are a purchasing system or wholesale system. For example, a CWS would sample in schools and child care facilities that they provide water to, but if the CWS also provides water to another system, they would not be responsible for sampling in schools and child care facilities served by the purchaser system. The Agency further clarifies that §141.92 does not apply to any schools or child care facilities that are regulated as a public water system (e.g., NTNCWS), as they must comply with the monitoring requirements in §141.86.
EPA also received several comments requesting Agency guidance on implementation of the revised rule. EPA understands this is a critical component to ensure the rule's effectiveness in protecting public health. The Agency intends to develop implementation guidance targeting the areas of the rule that are most likely to support compliance with the school/child care section of the rule. In addition to guidance, EPA will also provide training and other supporting materials that will help states and water systems implement the revised rule and promote greater national consistency.
12.3 Role of Community Water Systems
EPA received comments on the requirements in §141.92(a)(1) for CWSs to "compile a list of schools and licensed child care facilities served by the system" and to use the list to provide schools and child care facilities with "information about health risks from lead in drinking water on at least an annual basis," to conduct lead sampling, and provide facilities with the 3Ts guidance in §141.92(a)(2). EPA also received comments on the requirement in §141.92(a)(3) for a CWS to document if a school or child care facility "refuses entry or otherwise declines to participate in the monitoring or education requirements of this section." EPA also received general comments on the responsibilities of CWSs under §141.92, including requests to both remove and add requirements for CWSs under this section.
Responsibilities of CWSs under §141.92
Summary of Comments
EPA received comments on the responsibilities of CWSs required under §141.92. Several commenters expressed concern regarding the financial and resource burden of fulfilling the requirements of §141.92, including lack of data management systems at the state-level. One commenter expressed the need for a longer sampling cycle due to concern that their CWS does not have the human resources necessary to do the required sampling in schools. Another commenter stated that sampling in schools and child care facilities may strain resources, increase work load, and threaten compliance with other parts of the rule. Some commenters also stated that the water system does not have authority over premise plumbing and therefore should not be required to conduct sampling in schools and child care facilities, with some stating that such sampling requirements should be placed on those entities rather than the CWS. Although one commenter stated CWSs should be required to address elevated lead levels found at schools and child care facilities and another commenter stated CWSs should install certified filters or other devices to replace affected taps. One commenter stated that recurring sampling is unnecessary and that each school and child care facility should only be sampled by the CWS once.
One commenter stated that EPA had "acknowledged its lack of legal authority to require lead testing in schools and child care facilities" due to a statement in the current 3Ts that states "there is no federal law requiring testing of drinking water in schools and child care facilities, except for schools and child care facilities that own and/or operate their own public water supply and are thus regulated under the Safe Drinking Water Act (SDWA)." Another commenter further argued that Congress never intended for water systems to be involved in school and child care sampling. The commenter argued that prior to 2016, Section 300j-24 of the SDWA contained a provision to require each state to establish a program to assist local education agencies (LEAs) in testing and remedying lead contamination in drinking water at schools under the jurisdiction of such agencies. They argued that in 2016, Congress amended the statute and removed the provision under Section 300j-24 and instituted a grant program with the WIIN Act, "thereby signaling the intent for water systems to not be responsible for testing in these facilities." They state that CWSs should only be responsible for outreach activities under §141.92(a).
Some commenters also argued that §141.92 places "full responsibility" for sampling in school and child care facilities on CWSs while others questioned if CWSs have the necessary experience to implement the requirements. They stated that the existing Memorandum of Understanding (MOU) on Reducing Lead Levels in Drinking Water in Schools and Child Care Facilities is a better approach as it requires cooperation across partners and argued that the requirements in §141.92 supersede these efforts. Other commenters suggested that EPA support CWSs by collaborating with other agencies to encourage cooperation in implementing §141.92. Finally, some commenters noted that parts of the 3Ts are not addressed by §141.92 (e.g., remediation) and expressed concern that the CWS will be pressured to provide additional assistance to facilities not required by §141.92. They stated the requirement will imply that CWSs are responsible for remediation activities in schools and child care facilities. Some commenters also requested additional guidance on implementation various aspects of the requirements (e.g., sampling, data management).
Agency Response
EPA disagrees with comments that CWSs should not be required to sample in schools and child care facilities due to lack of authority over premise plumbing and that CWSs should not be financially responsible for the requirements of §141.92. The requirements of §141.92 are part of a targeted public education effort to educate schools and child care facilities and their users of the risks from lead in premise plumbing, the importance of testing for lead in drinking water, and to help them make decisions to mitigate lead risks. The requirements for CWSs to conduct sampling and public education for this vulnerable subset of customers is within EPA's authority to promulgate a treatment technique rule to "prevent known or anticipated adverse effects on the health of persons to the extent feasible." (SDWA 1412(b)(7)(A)). The fact that there is no current or previous requirement for CWSs to sample for lead in schools and child care facilities does not preclude EPA from promulgating a regulation that is within the scope of the SDWA for this purpose. EPA acknowledges CWS concerns about financial and resource burden in fulfilling the requirements of §141.92. EPA has revised §141.92 from proposal to final such that  CWSs will conduct public education outreach and sampling in elementary schools and child care facilities as described in the proposed requirements for one cycle of sampling (5 years) and sample secondary schools on request. After one cycle of sampling, CWSs will offer  on request sampling to all schools and child care facilities.. EPA disagrees with limiting CWS sampling to one cycle only. Lead levels have been shown to vary through repeat testing, and the results from one sampling event may not characterize conditions in the future (please see the response to comment Section 12.2 for further discussion). The 3Ts recommends recurring lead testing in schools and child care facilities to guide decisions to reduce lead risks. The Agency is requiring CWSs to conduct one cycle of sampling  in elementary schools and child care facilities to emphasize  the importance of lead testing to schools and child care facilities that serve the most vulnerable population. One round of sampling will provide school and child care facilities with experience and assurance in the process and benefits of managing a drinking water testing program, while maintaining the opportunity for schools and child care facilities that require additional assistance to be sampled on request (please see the response to comment Section 12.1 for details). EPA also notes comments that CWS reporting of data to the state may pose additional challenges if states lack appropriate data management systems (please see response to comment Section 14 for discussion).
The Agency further disagrees that the requirements in §141.92 are against Congressional intent. Section 1464(d) of the SDWA (authorized by the WIIN Act) created a grant program for states, territories, and tribes to fund voluntary testing of drinking water in schools and child care facilities. The requirements of §141.92 are not in conflict with Section 1464(d) of the SDWA and as noted above, it is within EPA's statutory authority to set these requirements. The requirement for CWSs to conduct sampling at schools and child care facilities provides an added measure of protection, above the other elements of the treatment technique rule, in light of the vulnerabilities of the population served and the potential variability of lead levels within the system and within a school or child care facility over time. EPA also notes that §141.92(d)(1)(iv) allows states to issue waivers to CWSs for sampling in schools and child care facilities that have been sampled by a grant program under Section 1464(d) of the SDWA (see the response to comment Section 12.8). EPA also disagrees with the comment that the Agency lacks the legal authority to require CWSs to conduct lead sampling in schools and child care facilities. The requirements of §141.92 are within the scope of the SDWA as detailed above and as such, the LCRR provides the legal authority.
EPA disagrees with commenters that the requirements in §141.92 place full responsibility for sampling in schools and child care facilities on the CWSs. The intent of §141.92 is to inform and educate targeted CWS customers and users about risks for lead in premise plumbing at schools and child care facilities. The Agency notes that the requirements in §141.92 do not constitute a comprehensive sampling program and further disagrees that §141.92 will create the perception of CWS responsibility for remediation. While EPA notes requests from commenters to require CWSs to install POUs or replace fixtures, CWSs are not responsible for conducting repair or replacement of premise plumbing. Public education and CWS sampling will encourage schools and child care facilities to take additional voluntary actions to reduce lead risk, including follow-up sampling and remediation. CWSs may choose to offer additional assistance to schools and child care facilities pursuing follow-up activities, but it is not required under §141.92. Please see the response to comment Sections 12.2 and 12.5 for more detail. EPA also disagrees with comments that CWSs lack the necessary experience to conduct school and child care lead sampling. CWSs have developed the technical capacity to do this work in operating their system and complying with drinking water standards. For example, CWSs have experience collecting tap samples and/or providing detailed instructions to consumers to collect samples, delivering results, and reporting to primacy agencies. EPA notes that CWSs are not required to recommend specific remediation strategies to schools and child care facilities under §141.92.
The Agency further disagrees with commenters who state that §141.92 supersedes or competes with the lead sampling in schools and child care facilities MOU (EPA, 2019b). The MOU was signed in 2019 by 14 federal and non-federal partners to voluntarily support and encourage schools and child care facilities to conduct comprehensive testing, remediation, and communication activities to reduce lead risks in their facilities. The requirements in §141.92 complement these efforts by providing a preliminary screen for lead risks in all schools and child care facilities and providing facility administrators with the tools and knowledge needed to inform decisions on reducing lead in their facilities. While some commenters expressed the importance of cooperation for facilitating lead reduction in schools and child care facilities, the Agency anticipates that CWS outreach and dissemination of the 3Ts and delivery of testing results will help initiate or strengthen communication between the CWS and schools and child care facilities. While not required, CWSs may choose to partner with school districts or other entities to help facilitate school and child care facility participation in sampling under §141.92. As noted by some commenters, other initiatives such as the Federal Action Plan to Reduce Childhood Lead Exposures and Associated Health Impacts (Task Force, 2018) are important for advancing the objective of reducing childhood lead exposure from all sources and depend on cooperation among state and federal partners (see  the response to comment Section 12.4). The Agency notes that these initiatives are ongoing and have been considered during the development of this rule.
EPA also received several comments requesting Agency guidance on implementation of the revised rule. EPA understands this is a critical component to ensure the rule's effectiveness in protecting public health. The Agency intends to develop implementation guidance targeting the areas of the rule that are most likely to support compliance. In addition to guidance, EPA will also provide training and other supporting materials that will help states and water systems implement the revised rule and promote greater national consistency.
Requirement to Compile List of Schools and Child Care Facilities
Summary of Comments
EPA received comments that stated that developing a list of schools and child care facilities as required in §141.92(a)(1) would be challenging. A few commenters suggested that such information be provided by the primacy agency or other appropriate licensing agency. One primacy agency informed EPA that state licensing agencies can provide access to school and child care facility information if requested, but that these agencies indicated they would not be able to query information by water system service area. Another commenter noted that CWSs that are not associated with a municipality may not be able to readily access the necessary information for the inventory. One commenter suggested that schools and child care facilities should be responsible for notifying the CWS of their licensed status and to initiate sampling. Some commenters suggested different time frames for developing and maintaining an inventory of schools and a few commenters indicated it would be difficult to maintain a list of the child care facilities because these facilities frequently close. Another commenter noted that a CWS's bill paying customer may lease a building to a school or child care facility and that the CWS may not have that information. One comment stated that additional effort would be needed to identify which facilities were built after 2014 to determine facilities that could be excluded from sampling.
Agency Response
EPA disagrees with commenters who state that the list of schools and child care facilities in each water system service area should be developed by the primacy agency or another agency. While agencies may be able to provide information about school and child care locations, this information is typically available by jurisdictional boundaries and not water system service areas. Water systems have knowledge of their service areas, customers, and system connections, and are best suited to identifying the schools and child care facilities they serve. However, the Agency notes that CWSs may review customer records and request information from the primacy agency or other licensing agency as part of a good faith effort to identify schools and child care facilities that they serve as stated in §141.90(i)(1)(i). A few other commenters noted the challenge of identifying child care facilities, citing frequent opening and closure. CWSs are required to update the list of schools and child care facilities at least once every five years in accordance with §141.92(e). The Agency disagrees with providing a longer time frame to develop the initial list of schools and child care facilities (e.g., 2 years after the rule compliance date in §141.80(a)(3)). EPA notes that CWSs will have three years from rule promulgation until the compliance date to compile the list. Given that children are particularly vulnerable to lead, the Agency believes it would be inappropriate to delay implementation of school and child care lead sampling. EPA acknowledges concerns that some information may not be known to the water system (e.g., a child care facility opening and closing between facility list updates, building lease information) and reiterates that CWSs must make a good faith effort. EPA also notes that unlicensed child care facilities are not included in these provisions, due to feasibility challenges for identification. The Agency notes that any home-based child care facilities that are not included under §141.92(a)(1) will receive the lead reduction benefits of CCT, public education, and LSL removal under other provisions of the LCRR. EPA identified a need to further define elementary and secondary schools based on the mandatory sampling requirements. For details on defining elementary and secondary schools please see the response to comment Section 2.
EPA also disagrees with the suggestion that schools and child care facilities be responsible for identifying themselves to their CWS. The purpose of the list in §141.92(a)(1) is to ensure that all schools and child care facilities served by a CWS receive public education materials and are sampled for lead. Relying on schools and child care facilities to self-identify will likely result in incomplete lists resulting in fewer facilities being sampled. EPA notes that the commenter does not suggest how schools and child care facilities would be aware of the sampling opportunity or how they would know to contact their CWS.
Outreach to Schools and Child Care Facilities and Documenting Refusals
Summary of Comments
Some commenters agreed with the requirement that CWSs provide the 3Ts and other health effects information in §141.92(a)(2). However, one commenter noted that the CWS should not be responsible for developing this information, and that health effects language should be provided by state or federal agencies. A couple of commenters stated the outreach materials provided by the CWSs should be translated into languages other than English to provide equitable access. Another commenter requested more specificity in examples of what would constitute "public education" in schools. One commenter requested that EPA remove the phrase "or subsequent EPA guidance" from §141.92(a)(2)(ii) because it could "have different requirements without going through the proper rulemaking and administrative procedures, including public review and comment."
 Some commenters also stated that the statement in §141.92(a)(2)(ii) that systems shall provide "notification that the water system will be conducting sampling for lead at the facility" is "adversarial" language and does not clearly indicate that a facility may decline sampling. Furthermore, commenters noted that CWSs do not have the legal authority to enter facilities without their cooperation or consent, and in some cases, individuals may be required to undergo training prior to entering the school or child care facility. A few commenters requested that the CWS should be able to provide training in sampling and/or provide instructions and materials for sampling in lieu of system staff performing the sampling in all schools and child care facilities.
Some commenters also requested clarification on documenting refusals under §141.92(a)(3) and stated that some schools and child care facilities are unlikely to respond to outreach efforts and that failure to obtain a refusal would prevent CWSs from complying with the requirements of §141.92. They suggested that EPA clarify how many attempts a water system should make before they document a facility as refusing sampling. A few commenters further suggested that EPA allow CWSs to conduct outreach to a central office such as a school district or child care business that serves multiple facilities under §141.92(a)(2)(ii).
Agency Response
EPA acknowledges comments supporting the provisions in §141.92(a) to provide the 3Ts and information on health effects of lead to schools and child care facilities. The Agency has revised §141.92(a)(2)(i) to clarify that information on health risks should be consistent with the content of public education materials as detailed in §141.85(a). CWSs currently provide this type of information to a range of consumers. While not required, the Agency encourages water systems to work with health agencies on developing these materials. EPA disagrees with removing the phrase "or subsequent EPA guidance" from §141.92(a)(2)(ii). While the 3Ts may undergo future revisions, the 3Ts is disseminated to help inform schools and child care facilities of how to reduce their lead risks. It is important that this information be current and reflect best practices. The Agency notes that the 3Ts is guidance and §141.92 does not require the CWSs to implement the 3Ts.
EPA acknowledges requests for CWSs to provide non-English language materials to schools and child care facilities. The Agency notes that "Module 1: Communicating the 3Ts" in the 3Ts Toolkit (https://www.epa.gov/safewater/3Ts) includes examples of translations to the text "This report contains important information about your drinking water. Have someone translate it for you or speak with someone who understands it" that CWSs can use when distributing materials. Additionally, the Agency notes that CWSs required by their primacy agency for public education materials to contain a translated statement on the importance of the information under §141.85(b)(1) will have these materials readily available (see the response to comment Section 8 for further discussion on translation of public education materials).
EPA agrees with commenters who state that some schools and child care facilities may not wish to participate in testing and may not respond to outreach. The Agency does not intend for CWSs to be held in violation based on lack of elementary school and child care facility participation during the one cycle of mandatory sampling. In response, EPA has revised §141.92(a)(3) to allow a system to document a refusal or a non-response. A CWS may document a non-response if an elementary school or child care facility does not respond after "two separate good faith" attempts by the CWSs to contact the facility. The Agency has also clarified in §141.92(c)(1) that both refusals and non-responses are counted towards the required sampling in 20 percent of elementary schools and 20 percent of child care facilities per year, to ensure that CWSs can meet compliance regardless of elementary school or child care facility actions.
The Agency notes that in the final LCRR, a CWS is required to offer testing on request to secondary schools while sampling elementary schools and child care facilities during the first cycle of sampling as stated in §141.92(a)(4). After a CWS completes the first cycle of sampling, the CWS will conduct outreach to all schools and child care facilities identified in §141.92(a)(1) annually as specified in §141.92(g). However, the CWS will only conduct sampling at the request of school and child care facility that they serve, and will not be required to document refusals (see response to comment Section 14 for more details). EPA also revised §§141.92(b) and (c) to state that "samples shall be collected" to clarify that individuals other than the CWS as specified in §141.92(b)(2) may collect samples at the school and child care facility. However, EPA did not revise §141.92(a) to allow CWSs to conduct outreach to central offices in lieu of individual schools and child care facilities. Neither the CWSs nor the Agency can require an entity such as superintendent's office to disseminate the information to the schools and child care facilities within the school district. EPA is requiring outreach to individual schools and child care facilities to ensure that all facilities receive the public education and information about sampling as intended by §141.92.
EPA received requests from commenters who supported the on request alternative to allow CWSs to limit the number of schools and child care facilities that could request sampling per year. During the first sampling cycle under §141.92(c), CWSs are required to sample 20 percent of elementary schools and 20 percent of the child care facilities they serve while also offering sampling on request to secondary schools. EPA has added a provision in §141.92(c)(4) that states that if a CWS receives requests for sampling from more than 20 percent of the  secondary schools that they serve, they may defer additional requests to the following year. While not required, the Agency encourages CWSs to fulfill more requests per year if able. Additionally, a CWS is not required to fulfill a request for sampling from an individual school more than once every five years. The Agency has added a similar requirement in §141.92(g)(3) for when a CWS is offering sampling on request to all schools and child care facilities they serve. In §141.92(g)(3) a CWS is not required to fulfill requests from more than 20 percent of the schools and child care facilities they serve per year and may defer additional requests to the following year. A CWS is not required to fulfill a request for sampling from each school or child care facility more than once every five years.
Additional Suggested Requirements for §141.92
Summary of Comments
EPA received suggestions for additional requirements under §141.92. A few commenters suggested that in the event of a positive lead result, the water system should conduct follow-up sampling to determine if the lead is from premise plumbing or from pipes in the CWS distribution system. A few commenters suggested that the water system should verify if the facility has an LSL by cross-referencing the school inventory with the LSL inventory required in §141.84(a), with one commenter indicating EPA could require CWSs to both prioritize lead service line replacements (LSLRs) in such locations and inform the testing schedule to ensure testing occurs after LSLR where possible. Another commenter suggested that child care facilities with children under six were particularly important to prioritize for LSLR, even above schools which are also important. Some commenters requested EPA require systems to conduct an "equity in prioritization" analysis to identify and prioritize the schools that may be at highest risk; another commenter requested EPA define which and how schools will be targeted for sampling to prevent disparities in prioritization. One commenter requested EPA clarification on whether sampling voluntarily conducted by a school or child care facility could count towards compliance or if the sampling event must be initiated by the CWS, and another suggested that EPA allow CWSs to sampling in facilities with high youth populations in lieu of schools (e.g., juvenile detention facilities, foster homes). Finally, one commenter noted that the proposal does not require CWSs to use the results and suggested that CWSs be required to integrate testing results into their system wide data to inform corrosion control decisions.
Agency Response
EPA notes requests for additional requirements under §141.92 including requiring LSL removal, follow-up sampling, prioritizing sampling according to social demographics, and integration of data into CCT decisions. Some commenters also requested information on how environmental justice issues are addressed in §141.92. EPA notes that all schools and child care facilities will receive public education and sampling under §141.92, regardless of socioeconomic status. The Agency is requiring CWSs to prioritize sampling in facilities serving young children who are most vulnerable to the effects of lead by requiring one cycle of sampling targeting elementary schools and child care facilities. EPA notes that secondary schools will receive PE materials annually and may request lead sampling from their CWS. After one cycle of sampling is complete, schools and child care facilities will continue to receive annual information on the health effects of lead and how to request sampling as required in §141.92(g). The Agency disagrees with requiring CWSs to prioritize sampling based on other specific factors. CWSs may not have access to the necessary information to conduct a prioritization analysis. While not required, EPA does encourage CWSs to prioritize sampling within the requirements of §141.92 according to known factors such as building age, student age, facilities serving disadvantaged populations, Title 1 (20 USC 6301 et seq.) or Head Start (42 USC 9801 et seq.) designations, and facilities served by LSLs. EPA recognizes that there are other types of facilities that serve children besides schools and child care facilities. However, it is not appropriate to sample these facilities in place of those identified in §141.92(a)(1) and there would likely be equity concerns in determining which schools and child care facilities to sample across CWSs. EPA also notes requests for clarification on applicability of the requirements to schools and child care facilities voluntarily conducting lead sampling. For details on the requirements for waivers issued under §141.92(d), please see the response to comment Section 12.8.
The Agency also disagrees that additional requirements be added to §141.92 for CWSs to conduct LSLR at school and child care facilities. The LCRR provides sufficient information to inform schools and child care facilities of risks from LSLs. Section 141.84(b) requires the CWS to develop LSLR plans which includes a prioritization strategy for replacing lines serving vulnerable populations such as children. A school or child care facility also has opportunities under §141.84(d)(3) to initiate replacement of an LSL serving their facility, as well as opportunities that arise under §§141.84(f -g) when a system is undergoing goal-based or mandatory LSLR (see the response to comment Section 6). Additionally, if a school or child care facility is served by an LSL, galvanized requiring replacement, or lead status unknown service line they will receive annual notification under §141.85(e) which includes information on opportunities for replacement (see the response to comment Section 8).
EPA also does not agree with requiring CWSs to conduct follow-up sampling to identify the potential source of lead (e.g., fixture, plumbing, LSL) and not sampling until after an LSL is removed. The Agency notes that a 250-ml sample volume is required because it is representative of the amount of water consumed per serving by a child. The smaller sample volume is also typically characteristic of the drinking water outlet. The 3Ts recommends follow-up sampling with other sample volumes (e.g., 125-ml, 1-L) and flush times (e.g., 30 sec., 2 min.) as appropriate to help pinpoint the sources of lead (USEPA, 2018a). However, requiring CWSs to conduct exploratory follow-up sampling would increase the number of samples and may be cost and resource prohibitive for many CWSs. Schools and child care facilities are encouraged to use the initial samples and the 3Ts provided by the CWS to pursue follow-up activities (see the response to comment Sections 12.2 and 12.5 for further discussion). EPA also notes that most large schools and child care facilities are not served by LSLs due to building size. However, if a school or child care facility does have an LSL and disturbance and/or replacement is conducted on either portion of the LSL the requirements of §141.84 apply which include provision of filters and follow-up tap sampling (please see the response to comment Section 6 for details). Finally, EPA disagrees with adding a requirement for CWSs to integrate school and child care sampling results into system-wide data to inform CCT decisions. Large buildings such as schools can have a higher potential for elevated lead levels because, even when served by a water system with well operated OCCT, there may be longer periods of stagnation due to complex premise plumbing systems and inconsistent water use patterns. The protocol for collecting samples in schools and child care facilities characterize lead at each fixture (e.g., first-draw, 250-ml volume) and are not appropriate for informing system-wide CCT decisions. It is also for these reasons that schools are not appropriate sites for lead compliance monitoring under §141.86. While not required, CWSs may assess lead results across the schools and child care facilities they serve as an additional source of information regarding system water quality.
12.4 Role of Other Agencies and Organizations
EPA received comments on the proposed requirements in §141.92 for CWSs to conduct public education and lead sampling in schools and child care facilities, including comments on requiring other entities such as health departments, education departments, and school districts to fulfill some or all of the requirements.
Responsibility of Other Entities for Select Requirements of §141.92
Summary of Comments
Many commenters requested that there be an increased role for school districts, state agencies, and other entities in achieving EPA's objective for assisting schools and child care facilities with sampling and testing for lead. Individual commenters suggested limiting water system responsibilities and allowing CWSs to use local educational departments to serve as liaisons for outreach to individual school facilities. Other commenters noted that public education activities, sample collection, and reporting requirements should be coordinated through an LEA. Some commenters suggested that local education and regulatory agencies be responsible for compiling the list of schools and child care facilities served by the water system under §141.92(a)(1).
Agency Response
EPA has retained the requirements for CWSs to be responsible, as articulated in the final regulations, for public education and sampling for lead in schools and child care facilities under §141.92. Water systems are in an excellent position to assist schools and child care facilities with sampling and testing for lead as they have developed the technical capacity to do this work in operating their system and complying with drinking water standards (see response to comment Section 12.1). The Agency disagrees with removing CWS requirements for developing the list of school and child care facilities and conducting outreach in §141.92(a). CWS service areas often differ from city or county boundaries and may not match school district boundaries. EPA anticipates that CWSs will reach out to regulatory agencies or school districts as part of a good faith effort to identify schools and child care facilities that they serve as required in §141.92(a)(1) and §141.90(i)(1)(i). Please see the response to comment Section 12.3 for further discussion. The Agency also acknowledges comments that LEAs may be helpful partners in encouraging school and child care facility participation in sampling under §141.92. However, the Agency is retaining the requirement for CWSs to conduct outreach and sampling requirements with the individual schools and child care facilities identified in §141.92(a)(1). The Agency does not have the authority to require LEAs to distribute the required information about sampling and public education materials under the SDWA. All schools and child care facilities must be identified and contacted to meet the intent of §141.92 to inform and educate targeted CWS customers and users about risks for lead in premise plumbing at schools and child care facilities. However, while not required, CWSs may conduct additional outreach to LEAs to help increase school and child care facility engagement.
Alternative Regulatory Approaches for Lead Sampling in Schools and Child Care Facilities
Summary of Comments
Some of the commenters requested that school districts, rather than water systems, should be responsible for the requirements of §141.92 and state that regulations be set between school districts / business owners and EPA or other state or federal agencies. Suggestions included state or federal health or education departments, or the agencies that provide certification for schools and child care facilities to operate.
Some commenters stated that lead sampling could be required as part of agency requirements for state licensing and that an inspection of the building(s) by a licensed building inspector for LSL, fixtures, and lead solder could become a requirement for licensing. Another commenter suggested that licensing agencies are in the best position to enforce corrective action, and that facilities with lead and copper issues could be prevented from being licensed. One commenter suggested recurring sampling as described in §141.92 be a requirement for license renewal. Similarly, a few commenters specifically suggested that child care facilities not associated with schools be excluded from §141.92 and be addressed via permitting agencies. One commenter cited existing state requirements (e.g., California) which require lead sampling as part of licensure. Other commenters requested that primacy agencies develop approaches for lead sampling in schools and child care facilities, including replacing §141.92 with a special primacy requirement under §142.16.
Agency Response
EPA does not agree that implementation of the requirements of §141.92 be conducted at the state level managed by state agencies (e.g., departments of health or education) and coordinated through school districts. EPA notes that the Agency does not have the authority under the SDWA to require state level health or education departments to implement lead testing requirements in schools and child care facilities. The Agency has provided its rationale, above, as to why CWSs are the appropriate entity to implement §141.92. The Agency is aware of some existing state and local level programs for lead testing in schools and child care facilities and notes that these existing programs are primarily administered by public health and environmental agencies (Cradock et al., 2019). Furthermore, EPA disagrees with commenters that lead sampling in schools and child care facilities would be more effective if spearheaded by the Department of Education (Education) or Department of Health and Human Services (HHS). According to the GAO EPA has primarily led efforts to support school lead testing rather than Education (GAO, 2018). EPA notes that the Education and HHS are signatories to the 2019 Memorandum of Understanding (MOU) on Reducing Lead Levels in Schools and Child Care Facilities with other federal partners and organizations (USEPA, 2019a). The signatories to the MOU agree to encourage schools and child care facilities to take actions to address lead in their facilities. This includes testing for lead in drinking water, disseminating results, and taking corrective actions. EPA intends for the requirements to complement these efforts and does not replace ongoing initiatives to address lead risks in schools and child care facilities.
One commenter questioned if local or state health departments would shut down facilities or require remediation activities upon reporting of elevated lead results. EPA notes that §141.92 does not require school or child care facilities, or other entities, to take specific actions in response to sampling results (see response to comment Sections 12.5 and 12.6 for more information). EPA notes that some commenters requested that lead sampling of schools and child care facilities be included as part of requirements for licensure and/or through building inspection. These requests are outside of the scope of the LCRR. The Agency acknowledges that some child care facilities that are not associated with school sites may be subject to lead sampling as part of state licensing procedures, but does not agree that these facilities should be removed from the purview of §141.92. The Agency notes that implementation efficiencies can be gained by having CWSs responsible for monitoring all child care facilities they serve, rather than splitting responsibilities for child care facilities associated with school sites from those that are not. However, to avoid duplication of effort, §141.92(d) was clarified and revised to allow states to provide CWSs with full or partial exemptions from the requirements of §141.92 conditional on specified criteria (see the response to comment Section 12.8).
EPA disagrees with the commenter who suggested the Agency replace the requirements of §141.92 with a special primacy requirement under §142.16 such that "state primacy agencies develop approaches to ensure schools and daycare facilities monitor for lead and remediation when elevated lead levels are elevated." Currently, there are many schools and child care facilities that are not subject to existing state or local requirements and have not been sampled for lead. With §141.92, EPA has set a baseline of standards for sampling with the intent to inform and educate targeted CWS customers and users about risks for lead at schools and child care facilities and encourage them to take voluntary actions to reduce lead risk. The requirements in §141.92 ensure a consistent approach to school and child care sampling across states. However, EPA notes that the requirements of §141.92 do not preclude states from developing and implementing lead sampling requirements for schools and child care facilities that meet or exceed the requirements in §141.92, as indicated in §141.92(d).
Collaboration with Federal Agencies and Non-government Organizations
Summary of Comments
Some commenters also requested that EPA work with other federal agencies as part of the President's Task Force on Environmental Health Risks and Safety Risks to Children which produced The Federal Action Plan to Reduce Childhood Lead Exposures and Associated Health Impacts. Commenters stated the importance of cooperation with other federal agencies such as Education and HHS citing their oversight of schools and child care facilities and that clear delineation of responsibilities helps leverage resources at the state level. A few commenters noted the need for guidance and assistance and requested EPA partner with stakeholder organizations and education associations to develop such guidance. One commenter also asserted that the responsibility for health information delivery is placed solely with CWSs and noted that information should be EPA approved and developed in consultation with appropriate experts and stakeholders.
Agency Response
EPA notes that some of the commenters requested that the Agency work with other federal partners as part of the President's Task Force on Environmental Health Risks and Safety Risks to Children (Task Force) which produced The Federal Action Plan to Reduce Childhood Lead Exposures and Associated Health Impacts (the Action Plan). The Task Force is comprised of 17 federal departments and offices including the Education, HHS, and the Department of Housing and Urban Development (HUD), which co-chaired the development of the Action Plan with EPA. To reduce exposure to lead through drinking water, the Action Plan highlights several key actions, including EPA's commitment to assisting schools and child care facilities with the 3Ts approach (Training, Testing and Taking Action) for lead in drinking water (Task Force, 2018). The Agency notes that the activities in the Action Plan are ongoing and were considered during deliberations in the development of this rule.
Finally, EPA received several comments requesting Agency guidance on implementation of the revised rule. EPA understands this is a critical component to ensure the rule's effectiveness in protecting public health. The Agency intends to develop implementation guidance targeting the areas of the rule that are most likely to support compliance. In addition to guidance, EPA will also provide training and other supporting materials that will help states and water systems implement the revised rule and promote greater national consistency. Likewise, EPA has clarified that health information provided to schools and child care facilities under §141.92(a)(2)(i) is to be consistent with the information required under §141.85(a) which is approved by primacy agencies and is not the sole responsibility of the CWS. EPA also notes that state and local health departments will receive school sampling results under §141.92(f) and health information under §141.85(i)(3) and may voluntarily choose to pursue additional initiatives to assist consumers in reducing lead risks.
12.5 Lack of Threshold for Remediation
EPA received many comments about the absence of an action level in the proposed requirements for monitoring for lead in schools and child care facilities in §141.92. EPA also received comments requesting that EPA require remediation actions in schools and child care facilities with elevated lead levels and issue additional guidance to assist schools and child care facilities.
Summary of Comments
Many of the commenters requested that EPA require schools and child care facilities to take remediation actions if sampling shows elevated lead levels and suggested potential action levels. Suggestions included 1 μg/L (noted as being consistent with recommendations of the American Academy of Pediatrics), 5 μg/L, 10 μg/L (noted as being consistent with the World Health Organization's Provisional Guideline value), "as low as feasible," and action levels from state and local testing requirements ranging from 1 to 20 ug/L (e.g., Illinois, City of San Francisco). One commenter suggested consideration of a 90th percentile calculation specifically for schools and child care facilities along with "find-and-fix actions" if the 90th percentile value exceeds the trigger level (10 μg/L). Another stated that schools and child care facilities should be required to provide potable water if outlets are disconnected due to elevated lead levels. Several commenters stated that EPA should include "clear guidance" on an acceptable level of lead in drinking water for schools and child care facilities, and suggested that the 3Ts be updated to include an action level and/or specific recommendations for actions at different lead levels. A few of the commenters noted that when EPA updated the 3Ts in October 2018, the Agency removed the action level of 20 μg/L used in the previous version and further stated that there is no safe level of lead. They also argued that the lack of an action level in the 3Ts "is problematic and creates inconsistencies in the data collected by existing state programs." One commenter further stated that the requirements provide "little to no actionable information" by not requiring actions based on sampling results.
A few commenters also requested that EPA establish a lead monitoring and remediation protocol that is at least as stringent as current state level programs. Other commenters noted that it may be challenging for school and child care facilities to identify appropriate action levels and address lead risks due to lack of resources. One commenter expressed concern that without an action level, EPA is sending a message to school leaders that their drinking water is safe if lead levels are below the federal action level of 15 ug/L. A few commenters further stated that limited results may be misleading or could be misinterpreted. Finally, another commenter expressed concern that the 3Ts guidance may send misleading information to schools and child care facilities, citing existing sampling programs that do not always follow the 3Ts.
Agency Response
EPA does not agree with the commenters who requested that §141.92 include a requirement for remediation actions by water systems, schools, or child care facilities if results show elevated lead levels. Under the SDWA, EPA is authorized to establish National Primary Drinking Water Regulations (NPDWRs) that are legally enforceable standards that apply to public water systems as defined in §141.2. The Agency notes that most school and child care facilities are not public water systems and EPA does not have the authority to mandate that remediation actions be taken by those facilities, including requiring disconnection or replacement of drinking water outlets and/or provision of alternative drinking water sources. However, EPA disagrees that the requirements will not produce "actionable information" in the absence of requirements for remediation. The public education and lead sampling requirements of §141.92 are intended to help educate and inform schools and child care facilities of the health risks of lead, the importance of testing for lead in drinking water, and to encourage them to take voluntary actions to reduce lead risk. EPA developed the 3Ts to provide tools and technical materials for schools, child care facilities, states, tribes, territories and drinking water systems to implement voluntary lead reduction programs (USEPA, 2018a). For more information about the 3Ts Toolkit see response to comment Section 12.6. EPA notes that schools and child care facilities that are regulated as public water systems are exempt from §141.92 but are subject to the other requirements of the rule.
By distributing the 3Ts (or subsequent Agency guidance), a CWS would initiate or contribute to active communication with schools and child care facilities, which are critical customers that serve a vulnerable population. The managers of these facilities have established lines of communication with the occupants of these buildings (and their parents or guardians) and have control over routine maintenance and plumbing materials that may need to be addressed. Schools and child care facilities can use both the sampling results and the 3Ts to make decisions regarding follow-up testing, testing additional outlets, and remediation actions (see the response to comment Section 12.6 for more detail). EPA suggests that schools and child care facilities are best situated to make decisions in the context of their community needs and resources.
EPA also does not agree that §141.92 should include an action level for use at schools and child care facilities, as water systems are not required to conduct remediation activities as part of these requirements. As noted by commenters, there are a variety of thresholds recommended by organizations and the Agency acknowledges that thresholds vary across state and local testing programs. While the 3Ts does not specify a remediation level for lead, it recommends that schools and child care facilities reduce their lead levels to the lowest levels possible. The 3Ts includes resources to help schools and child care facilities to pinpoint potential lead sources and to reduce their lead levels, including examples of remediation actions taken in response to different lead levels. While not required in §141.92, EPA encourages schools and child care facilities to prioritize remediation efforts based on the highest lead sample results as recommended in the 3Ts.
EPA also does not agree with including a 90[th] percentile calculation specifically for schools and child care facilities along with find-and-fix actions if the 90[th] percentile value exceeds an action level. The Agency notes that the 90[th] percentile calculation for lead is used in tap compliance monitoring to evaluate system-wide CCT effectiveness. The commenter did not provide justification for why a 90[th] percentile calculation specifically for schools and child care facilities would provide more appropriate information about lead risks in premise plumbing at schools and child care facilities within its distribution system than the approach in §141.92. Furthermore, the Agency disagrees that find-and-fix requirements should apply to schools and child care facilities. The requirements in §141.84 include steps to identify and remediate the source of elevated lead levels, including CCT adjustments. EPA notes that customers are responsible for voluntary replacement of premise plumbing under find-and-fix. Large buildings such as schools can have a higher potential for elevated lead levels because, even when served by a water system with well operated OCCT, there may be longer periods of stagnation due to complex premise plumbing systems and inconsistent water use patterns. In such situations, there may not be technical improvements that can be made to the OCCT. However, schools and child care facilities can use public education material and lead sampling results to mitigate lead risks, including taking actions to address elevated lead levels such as such as replacement of fixtures or other remediation actions. EPA further acknowledges concerns regarding facility resources to interpret results in the absence of an action level and to take remediation actions. EPA notes that there are various resources available to assist schools and child care facilities in addressing lead in drinking water (see the response to comment Section 12.6).
The Agency also notes concerns from commenters who reported that the 3Ts are not always followed in existing sampling programs. However, EPA disagrees that the lack of an action level sets up "schools and child care facilities for failure," that a school administrator would believe their water is safe if they are provided with a "passing grade on federal lead test," and that results will be misinterpreted. The requirements of §141.92 are part of a targeted public education effort to educate schools and child care facilities and their users of the risks from lead in premise plumbing, the importance of testing for lead in drinking water, and to help them make decisions to mitigate lead risks. The Agency notes that analytical results are required to be provided to the facility under §141.92(f) but that results are not presented against a federal "pass/fail" standard. EPA notes that the action level for lead is used to evaluate the effectiveness of system-wide CCT and is not used in the requirements under §141.92. While the 3Ts does not specify an action level for schools and child care facilities, the guidance states that there "is no safe level of lead for children" and encourages schools and child care facilities to reduce lead levels to the lowest levels possible. In response to the commenter who stated that some facilities may not follow the 3Ts, the Agency notes that the 3Ts is guidance and not enforceable, as opposed to the sampling protocol in §141.92(b) which is a requirement. However, EPA expects that CWS dissemination of public education material and sampling under §141.92 will contribute to both increased familiarity with the 3Ts and will assist facilities in taking steps to reduce lead risks. Furthermore, EPA along with federal and non-federal partners are collaborating to continue to develop and update tools in the toolkit, such as template letters for schools to communicate about the program and sample results (please also see the response to comment Section 12.6). Finally, one commenter requested that EPA align its requirements in §141.92 with the 3Ts but did not identify specific requirements in §141.92 that should be changed based on information in the 3Ts (please see the response to comment Section 12.2 for discussion on sampling protocol and the 3Ts).
12.6 Resources for Remediation of Lead in Schools
EPA received comments on the proposed requirement in §141.92(f)(1) for CWSs to provide information about remediation options to schools and child care facilities with sampling results. EPA also received comments on resource limitations for remediation of lead in schools and child care facilities.
Requirement for Water Systems to Provide Remediation Information to Schools and Child Care Facilities
Summary of Comments
EPA received several comments requesting additional guidance regarding remediation of lead in schools and child care facilities. EPA also received some comments requesting clarification on what type of information about remediation options meets the requirement of §141.92(f)(1), with some commenters stating that the 3Ts contains this information. Other commenters noted that the requirement for providing information about remediation options was insufficient and requested that additional funding and support for remediation (e.g., trainings, webinars, workshops) be provided to schools and child care facilities. One commenter suggested requiring information about both short- and long-term remediation options.
Conversely, a few commenters did not support requiring the CWS to provide information about remediation options, stating that the state should make information available to school and child care facilities on request. Another commenter stated that a CWS may be subject to financial liability if a school or child care facility implements a remediation option and saw no reduction in lead levels, while another commenter stated the CWS would be responsible for replacing all lead-bearing premise plumbing.
Agency Response
EPA developed the 3Ts to provide tools and technical materials for schools, child care facilities, states, tribes, territories and drinking water systems to implement voluntary lead reduction programs (USEPA, 2018a). The toolkit is a collection of resources that include communication and recordkeeping templates, educational and technical factsheets, checklists, instructions and a web-based step-by-step seven module format. The implementation approach of the tools is (1) TRAINING to raise awareness of the 3Ts program and the potential causes and health effects of lead in drinking water, (2) TESTING drinking water in schools and child care facilities to identify potential lead problems, and (3) TAKING ACTION to reduce lead in drinking water. In an effort to continue to prioritize efforts to reduce lead exposure to children, EPA along with 14 federal and non-federal partners signed in 2019 the Memorandum of Understanding (MOU) on Reducing Lead Levels in Drinking Water in Schools and Child Care Facilities (USEPA, 2019a). The MOU partners are collaborating to continue to develop and update tools in the toolkit, such as template letters for schools to communicate about the program and sample results.
EPA does not agree that it should remove the requirement in §141.92(f)(1) for CWSs to provide information about remediation options to schools and child care facilities. The requirement in §141.92(f)(1) is necessary to meet EPA's intent for a CWS to provide public education on lead in drinking water to the schools and child care facilities it serves. The Agency has clarified that remediation information shall come from the 3Ts (USEPA, 2018a) or subsequent EPA guidance, which includes a variety of immediate and long-term actions schools and child care facilities can take to address lead risks in their facilities. The Agency disagrees that directing school and child care facilities to remediation options in the 3Ts will subject CWSs to liability issues. The CWS is not required to recommend a specific remediation action and the Agency is not aware of any instances of liability claim issues as a result of a school or child care facility implementing a remediation option as described in the 3Ts. The Agency also notes that the commenter did not provide information to support concerns regarding liability issues. While not required, EPA encourages water systems to voluntarily offer additional technical support to schools and child care facilities as resources allow to help them reduce lead levels. CWSs are not required by §141.92 to replace any premise plumbing or school infrastructure.
Additionally, the Agency does not agree with the commenters who stated that providing remediation information from the 3Ts under §141.92(f)(1) is insufficient. The 3Ts provides detailed information on interpreting lead results and implementing short- and long-term remediation options. Such options include disconnection of fixtures, signage, flushing, installation of POU devices, provision of bottled water, and replacement of affected outlets with lead free fixtures. The GAO indicated in a 2018 report that 60 percent of school districts were not familiar with the 3Ts, but for those that were, 68 percent reported finding the guidance helpful in reducing lead risks in their facilities (GAO, 2018). EPA notes that facility managers should work closely with maintenance staff and plumbers who may make repairs so that the chosen remediation options will sufficiently remove lead from the water and to understand the benefits and considerations associated with each option.
Potential Resource Limitations
Summary of Comments
Commenters noted that schools and child care facilities are responsible for making decisions regarding follow-up or remediation actions in response to lead sampling results, and expressed concerns regarding lack of financial resources. Several commenters requested increased federal funding for lead remediation in schools and child care facilities, noting that resources may be particularly limited in small and rural school districts. A few commenters also stated that there are often limitations on raising local funds for capital improvements to address lead risks. The commenters requested that EPA work with other federal agencies and Congress to secure federal appropriations for lead remediation in public schools and water infrastructure. EPA also received a comment regarding lack of federal funding for testing and remediation in schools that control their own water supply (e.g., groundwater source), stating that these facilities would be subject to the requirements of §141.92.
Agency Response
EPA acknowledges commenter concerns regarding the availability of funding for lead remediation in schools and child care facilities. Additional resources are available to help school and child care facilities in these efforts. EPA has included a companion document to the 3Ts: "Potential Funding Sources for Reducing Lead in Drinking Water in Schools and Child Care Facilities" (USEPA, 2019b) in the 3Ts and identifies potential funding sources for lead remediation and water quality-related projects. At this time, the guide lists 4 federal programs, 79 state programs, and 115 foundations/companies providing various funding opportunities that might help schools and child care facilities that lack resources to effectuate lead remediation. Additionally, on February 19, 2020, EPA announced the availability of $39.9 million in grant funding under Section 1459(B) of the SDWA, which included $22.8 in funding for lead remediation in schools and child care facilities under the Reduction of Children's Exposure to Lead in Drinking Water at Schools and Child Care Facilities National Priority Area (Fiscal Year (FY) 18 - FY 20 funds). The Request for Application (RFA) made funding available to eligible applicants for projects in disadvantaged communities under the affordability criteria defined in Section 1452(d)(3) of the SDWA. Eligible applicants such as states and municipalities were encouraged to build workplans to incorporate funding for remediation in schools and child care facilities. Additionally, nonprofit organizations serving a public water system, water systems serving an area governed by an Indian Tribe, CWSs, and NTNCWSs were eligible to apply. Requests that EPA work with other federal agencies and Congress to secure federal appropriations for lead remediation in schools and water infrastructure, and that there be an increased level of federal funding for remediating lead found in schools, are outside of the scope of this regulatory action.
Finally, EPA recognizes comments regarding the applicability of §141.92 to schools and child care facilities that are regulated as public water systems. The Agency has clarified in the introduction to §141.92, that the requirements of §141.92 do not apply to schools and child care facilities that are regulated as public water systems. Instead, these facilities are subject to the monitoring requirements under §141.86. Additional information about the applicability of §141.92 is provided in the response to comment Sections 12.2 and 12.3.
12.7 Results of School and Child Care Sampling
The Agency received comments on the proposed requirement in §141.92(f) that states CWSs must provide analytical results from lead monitoring in schools and child care facilities to the school or child care facility (along with information about remediation options), the local and state health department, and the primacy agency no later than 30 days after receipt of results.
Summary of Comments
Some commenters supported the requirements in §141.92(f) but suggested that results be made available sooner than 30 days after receipt of results (e.g., 24 hours, 7 days, 14 days). Some commenters noted that there is no requirement for schools and child care facilities to share the results with staff, parents, guardians, and other building staff. They requested that EPA add requirements for the CWS and/or states to make the results of school and child care facility testing available to the public to ensure building occupants are aware of any lead risks. A few commenters suggested public notification when results show elevated lead levels (e.g., exceeding 15 ug/L). One commenter also stated that results be accessible in languages spoken by the CWS's customers, particularly if the system serves more than 3,300 people. Conversely, one commenter stated results would be subject to Freedom of Information Act (FOIA) requirements and "could become a publicity nightmare" because it may blur "the distinction of whether the school or the water system is responsible for the water within the school's premise plumbing." Other commenters questioned how schools and child care facilities should communicate lead results and remediation options to building occupants, with one commenter noting that school and child care facilities may not know how to interpret results.
One commenter stated that their state regulations require reporting of school and child care lead testing results on a public website and argue that the requirements in §141.92(f) for reporting results to the primacy agency would result in the additional reporting of thousands of sample results, placing an undue burden on the system. Another commenter requested clarification on what is required of the CWS and primacy agency after receiving results.
Agency Response
EPA disagrees with commenters who requested that results be provided to schools and child care facilities sooner than 30 days. Providing results within 30 days is consistent with the notification of results for tap sampling under §141.86 and is appropriate for the CWS to fulfill its role in assisting schools and child care facilities with sampling and testing for lead. Additionally, EPA notes that §141.92(f)(1) states that results should be provided "as soon as practicable" and that 30 days is the maximum length of time for providing results. Therefore, EPA has retained the requirement in §141.92(f)(1) for the CWS to provide the sampling results to schools and child care facilities no later than 30 days after receipt. For consistency across other reporting requirements, EPA has revised §§141.92(f)(2) such that the CWS reports all results to local and state health departments as well as to the primacy agency as part of annual reporting detailed in §141.90(i) (see the response to comment Section 14 for more information). EPA has also indicated in §141.92(g) that when testing is offered on request, the CWS must fulfill the requirements of §141.92(f) for the schools and child care facilities that request sampling.
EPA does not agree with revising §141.92(f) to require water systems or the state to make the results of school and child care facility sampling available to the public. Requiring the CWS and/or the state to make results publicly available would likely lead to public inquiries regarding results and remediation activities. Neither CWSs nor state agencies are responsible for remediation activities or follow-up actions and they are not positioned to answer questions from the public on any actions that a school or child care facility manager may elect to pursue after receiving results. Furthermore, schools and child care facilities may elect to implement their own 3Ts programs and would not necessarily report these activities or results to the water system or state agencies resulting in outdated information on water system or agency websites. While not required, EPA encourages CWSs, the primacy agency, and health agencies to use the school sampling results. As resources allow, a system or agency may choose to analyze trends in lead sampling results to assess the need for additional resources or support.
The Agency also disagrees with requiring a public notice procedure for school and child care facilities. Public notification requirements under §141.201 are for system-level lead exceedances and are provided to all water system customers. School and child care facilities are water system customers and therefore receive the public notices and public education materials as specified under §§141.201 and 141.85. However, it is not feasible for the CWS to identify all consumers within schools and child care facilities and distribute results or other information to those individuals. Furthermore, while EPA acknowledges that sampling results may be subject to FOIA requirements, the Agency does not agree with comments that this would "become a publicity nightmare" because it could blur "the distinction of whether the school or the water system is responsible for the water within the school's premise plumbing." The requirements in §141.92(f) clearly detail that the CWS is responsible for providing results to the school and care facility and not to conduct remediation activities. While not required, the Agency encourages school and child care facilities to share public education materials, sampling results, and information about follow-up activities with building occupants and stakeholders as recommended in the 3Ts (see response to comment Section 12.6 for more information). This may include providing information in languages spoken by the users of these facilities, parents, and guardians.
While one commenter stated that schools and child care facilities are not necessarily forthcoming about results or may not understand them, the Agency anticipates that the dissemination of the 3Ts will increase understanding of lead risks in schools and child care facilities and the importance of communicating sampling results and follow-up actions. The Agency notes requests for additional guidance to facilitate these efforts. The 3Ts is a collection of resources that include communication and recordkeeping templates, educational and technical factsheets, checklists, instructions and a web-based step-by-step seven module format (USEPA, 2018a). As noted in the response to comment Section 12.6, EPA is collaborating with 14 federal and non-federal partners to develop and update tools in the toolkit, such as template letters for schools to communicate about the program and sample results (USEPA, 2019a). The 3Ts Toolkit resources can be found at https://www.epa.gov/safewater/3Ts.
EPA acknowledges that several jurisdictions (e.g., select states and cities) require public reporting of lead sampling results including parental notification. The requirements of §141.92 do not preclude states and cities from incorporating such requirements in state or local law or regulations. EPA notes commenter confusion regarding reporting requirements in §141.92(f)(2) for schools and child care facilities subject to local or state-level lead sampling requirements. It is not the Agency's intention for a CWS to report sampling results to the state that are collected outside of the requirements of §141.92. The Agency has clarified in §141.92(d) that a state may provide a full or partial waiver to CWSs for the requirements of §141.92 when there are existing lead sampling requirements that meet specified conditions (see the response to comment Section 12.8).
12.8 Waivers for Alternative Sampling Programs
EPA received comments on the proposed requirement in §141.92(d) that allows a state to provide CWSs a written waiver for §141.92 where local or state law or regulations requires schools and child care facilities to be tested in a way that is consistent with the requirements described in §141.92.
Summary of Comments
EPA received many comments on the alternative school and child care lead sampling programs in §141.92(d). Commenters noted an inconsistency between the preamble in the November 2019 notice that described the state providing waivers to CWSs where existing school and child care sampling requirements are at least as stringent as §141.92, and the proposed requirement that stated "the water system may execute that program [existing state or local regulations] to comply with the requirements of this section," implying a different mechanism. One commenter also noted that the preamble described partial waivers and requested that §141.92(d) be revised to include both full and partial waivers. A few commenters also requested that EPA consider schools that are conducting monitoring themselves as part of facility or school district policy. A few commenters requested EPA provide clarity on the requirements for a waiver.
Some commenters expressed concern that the requirements in §141.92 would result in duplicative testing efforts and encouraged EPA to accommodate the sampling protocols of existing state and local programs, stating that programs using different stagnation times or sample volumes should not be excluded if they require sampling more outlets, sampling more frequently, and include remediation activities. A few commenters described specific state programs (e.g., California, Minnesota) and requested that waivers be issued for these programs. Conversely, EPA also received a comment that waivers should only be granted under more stringent criteria (e.g., 5 ug/L action level, required remediation, public reporting of results).
A few commenters noted that §141.92(d) does not specify the effective length of the waiver. EPA received suggestions for both permanent waivers and short renewal periods. A few commenters also requested that EPA consider how it could recognize WIIN Act resources that have already been dedicated to such efforts as part of §141.92 requirements, and asked if facilities tested using WIIN Act resources within a five year testing period would be required to also be tested by the water system.
Finally, a few commenters expressed concerns that the provision of §141.92(d) would not address the lack of standardized approaches across states (e.g., some state programs are voluntary, only require one time testing with no follow-up or remediation required) and that some states with more stringent requirements for school and child care sampling may "loosen their efforts and enforcement."
Agency Response
EPA notes that many commenters supported the proposed provision allowing a state or primacy agency to waive school and child care facility sampling requirements for individual CWSs to avoid duplication of effort. The Agency has retained this provision in the final rule but recognizes inconsistencies between the proposed requirements in §141.92(d) and the preamble of the November 2019 notice regarding CWS requirements and partial waivers. In response, the Agency has clarified the conditions under which a state may exempt water systems from the requirements of §141.92. The Agency also clarifies that §141.92(d) is intended to exempt CWSs from the requirements of §141.92 as applicable. During the one round of mandatory sampling, a state may issue a CWS a written waiver if there is a state or local program to sample for lead in drinking water at elementary schools or child care facilities that meets the requirements of this rule. This also may include elementary schools or child care facilities that are sampling for lead through facility or district policy. A CWS will still be required to offer sampling to secondary schools during the first cycle of sampling if there is no state or local program that meets the requirements of this rule. When CWSs are offering sampling on request in accordance with §141.92(a)(4) and §141.92(g), a state may also issue waivers for voluntary sampling programs that meet the requirements of §141.92(d) as stated in §141.92(g)(4).
If a program is limited to a subset of schools and child care facilities defined in §141.92(a)(1), a state may issue a partial waiver. For example, if a state has a required program for testing lead in drinking water in both elementary and secondary public schools but not in other types of schools or child care facilities, then a CWS serving only public schools can receive a full waiver for the duration of the program. If a CWSs serves both public and non-public schools and child care facilities, then the CWS would be required to fulfill the requirements of §141.92 at the non-public schools and child care facilities and could receive a partial waiver to acknowledge that the CWS is not responsible for sampling in public schools. When a CWS is required to offer sampling on request, a state may also issue waivers for existing voluntary programs. For example, if a state agency offers testing to all public schools when requested, the state could grant a partial waiver such that a CWS would not be required to offer sampling to public secondary schools in its service area during the time the CWS is conducting mandatory sampling in elementary schools and child care facilities. When the CWS is offering sampling on request to all schools and child care facilities, a state could then grant a waiver such that the CWS would not be required to offer sampling to the elementary and secondary public schools in its service area for the duration of the voluntary program. EPA acknowledges that existing programs often require sampling of more outlets, remediation, and other elements consistent with the 3Ts, and that sampling protocol (e.g., sample size, stagnation time, and number of samples) often varies from the requirements in §141.92(b). In response, §141.92(d)(1) has been revised to specify elements that must be met in order to be eligible for a waiver. A CWS may be granted a waiver if a program meets the requirements of §141.92 as stated in §141.92(d)(1)(i). Additionally, under §141.92(d)(1)(ii), if the sampling meets the final rule requirements, with the exception of stagnation time and sample volume, a wavier may be granted if remediation actions are required as part of the program (replacement of fixtures, disconnection of fixtures, and installation of POU devices). Likewise, programs with less frequent sampling (e.g., every six years) that sample more outlets and require remediation, may meet the requirements for a waiver under §141.92(d)(1)(iii). The Agency does not believe it is appropriate to allow shorter stagnation times and larger sample volumes unless paired with other activities as that protocol has the potential to underestimate lead levels compared to the protocol in §141.92(b)(1)(vi). Similarly, less frequent monitoring on its own would not be as protective as the requirements in §141.92.
Some mandatory and voluntary programs are or have previously been funded, wholly or in part, under grant programs for school and child care facility lead testing established by the WIIN Act. Therefore, waivers may also be granted if sampling is conducted in accordance with a grant awarded under Section 1464(d) of the SDWA in accordance with §141.92(d)(1)(iv). The Agency also acknowledges a potential lack of clarity in §141.92(d) regarding the length of waivers. In the final rule, §141.92(d)(2) has been added to specify that a waiver may not exceed the duration of a mandatory or voluntary sampling program, upon which a CWS will fulfill the requirements of §141.92 as specified.
EPA disagrees with comments that waivers under §141.92(d) should only be granted to programs that require sampling of all outlets, remediation at specific levels (e.g., 5 ug/L), and public availability of results as these requirements exceed those provided in §141.92. Please see the response to comment Sections 12.2, 12.5, and 12.7 for further discussion of these topics. The Agency also disagrees with "grandfathering" the results of prior sampling, as the sampling may not comport with the minimum requirements set by §141.92. Furthermore, while some schools and child care facilities may have been sampled in the past, lead levels at one outlet do not necessarily characterize those at another and results may vary at an individual outlet over time due to changing conditions. However, under §141.92(d), if an existing program meets the stated requirements and is ongoing, the state may grant individual CWSs waivers as described above.
EPA is aware that there is variability in approaches across existing state-level school and child care sampling programs. However, the Agency provides a standardized approach in §141.92(b)(1)(vi) and has identified the smallest set of activities that must be required for a state to issue a waiver for mandatory or on request testing under §141.92(d) or §141.92(g), respectively. The Agency notes that the proposed rule does not preclude a state from enacting laws or regulations that require additional activities to further address lead in schools and child care facilities. Furthermore, the Agency did not request that a state or locality with existing requirements that are more rigorous than §141.92 loosen their efforts and enforcement. Instead, §141.92(d) has been changed to accommodate existing efforts and avoid duplication of efforts. The Agency suggests that the public education and sampling requirements in §141.92 are sufficient to inform and educate targeted CWS customers on the importance of sampling for lead in drinking water in schools and child care facilities and help them make decisions to mitigate lead risks.
EPA received several comments requesting Agency guidance on implementation of the revised rule. EPA understands this is a critical component to ensure the rule's effectiveness in protecting public health. The Agency intends to develop implementation guidance targeting the areas of the rule that are most likely to support compliance. In addition to guidance, EPA will also provide training and other supporting materials that will help states and water systems implement the revised rule and promote greater national consistency.
References
Cradock A.L., C.A. Hecht, M.K. Poole, L.Y. Vollmer, C.N. Flax, J.L. Barrett. 2019. State approaches to testing school drinking water for lead in the United States. Boston, MA: Prevention Research Center on Nutrition and Physical Activity at the Harvard T.H. Chan School of Public Health. Available at https:// www.hsph.harvard.edu/prc/projects/ school-research/early-adopters.
General Accountability Office (GAO). 2018. U.S. Government Accountability Office. K-12 Education, Lead Testing of School Drinking Water Would Benefit from Improved Federal Guidance. July 2018.
President's Task Force on Environmental Health Risks and Safety Risks to Children (Task Force). 2018. Federal Action Plan to Reduce Childhood Lead Exposures and Associated Health Impacts. December 2018. https://www.epa.gov/sites/production/files/2018-12/documents/fedactionplan_lead_final.pdf
United States Environmental Protection Agency (USEPA). 2018a. 3Ts for Reducing Lead in Drinking Water in Schools and Child Care Facilities: A Training, Testing, and Taking Action Approach. EPA 815-B-18-007. October 2018. https://www.epa.gov/ground-water-and-drinking-water/3ts-reducing-lead-drinking-water-toolkit.
USEPA. 2018b. 3Ts Flushing Best Practices. EPA 815-F-18-027. October 2018.
USEPA. 2019a. Memorandum of Understanding on Reducing Lead in Drinking Water in Schools and Child Care Facilities. September 2019. https://www.epa.gov/sites/production/files/2019-10/documents/mou_reducing_lead_in_drinking_water_in_schools_final.pdf
USEPA. 2019b. Potential Funding Sources for Reducing Lead in Drinking Water in Schools and Child Care Facilities. EPA 816-B-19-005. October 2019.
USEPA. 2020a. Economic Analysis for the Final Lead and Copper Rule Revisions.
USEPA. 2020b. 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.
13 Find-and-Fix
EPA requested comment on several aspects of find-and-fix. EPA asked for feedback on general issues related to find-and-fix. In addition, commenters were asked to present any alternatives to find-and-fix. EPA requested comment on Site Assessment (Follow-Up Tap Sampling) as well as how find-and-fix addresses issues related to water quality parameter (WQP) sampling, corrosion control treatment (CCT) and distribution system fixes. EPA requested additional comment on any issues that may be raised with respect to the responsibilities of the homeowner or the water system. Finally, EPA requested comment on the proposed schedule in the revisions for and "fixes" to be done by the water system.
EPA received many comments on the proposed requirements for find-and-fix in § 141.82(j),. EPA received comments both in support and opposition to the proposed provisions. EPA received comments regarding CCT adjustments, follow-up tap sample collection and WQP monitoring, as well as homeowner and water system responsibilities.
13.1 General Comments
Summary of Comments
Some commenters have asked for clarification of certain aspects of the regulation. Several commenters have requested a clearer definition of what is being "fixed." More specifically, one of the commenters wanted more explanation on the phrase "perform needed action." Meanwhile, another commenter wanted the regulation to include minimum criteria on what would be included in a find-and-fix assessment. Other issues for clarification included: (1) if find-and-fix only applies to Tier 1 sample results, (2) if find-and-fix is only triggered by tap samples collected for compliance purposes, and (3) what find-and-fix actions are warranted in case of an ALE or TLE exceedance.
A few commenters mentioned issues relating to state primacy and regulatory agencies. One commenter called for guidance on "find-and-fix approaches" such as what to do if: (1) there is an exceedance in the action or trigger level, and (2) the lead issues associated with certain sample WQP sites are resolved. A couple other commenters recommended that language in the find-and-fix section should clearly let agencies set guidelines for how to address the "localized issues" when there is an exceedance. Another commenter also addressed state regulatory agencies in that find-and-fix should mention the lead corrosion expertise that is provided by these agencies to aid in carrying out find-and-fix in a "scientifically sound manner." One commenter suggested a template that can be used to report find-and-fix related actions to the primacy agency. Conversely, a commenter advised against making states responsible for recordkeeping of find-and-fix actions that happen within their borders.
Several commenters have suggested eliminating the find-and-fix provisions. A couple commenters have mentioned that the find-and-fix revisions would increase workload or are burdensome. One commenter mentioned that find-and-fix follow-up sampling requirements may overlap with 90[th] percentile trigger level or action level exceedances. Another commenter states that find-and-fix should not be included in the Lead and Copper Rule revisions (LCRR) due to the extra burden it will place on small and medium utilities that have fewer resources and that single sample exceedances do not always correlate with 90[th] percentile exceedances.
A couple commenters recommended moving find-and-fix to another section of the LCRR. One commenter suggested moving find-and-fix from § 141.82(j) to either § 141.81 or § 141.86 in the final rule since systems "are only prompted to review § 141.82 after being triggered into [optimal corrosion control treatment]OCCT, which is outlined in § 141.81." Another commenter suggested moving the proposed provisions to §141.85.
A few commenters raise the possibility that any lead source investigation resulting from an exceedance may be inconclusive. A couple commenters specify that there should be language in the find-and-fix section that addresses this type of scenario. Another comment mentions a scenario in which there is an elevated lead sample that is "non-repeatable", which would most likely be unable to be solved.
One significant issue related to find-and-fix is whether the find-and-fix process is triggered by sampling conducted by the water system that is either voluntary or required but in response to customer-requests. Commenters that mentioned these types of tap samples advised against using those samples to trigger the find-and-fix process. Two commenters added that the use of voluntary or required customer-requested samples would disincentivize utilities from offering free sampling services to customers due to the added burden of find-and-fix. Another commenter adds that the addition of voluntary/customer-requested sampling to routine sampling would result in a large number of sampling sites to maintain, which would put a strain on resources.
One of the commenters mentioned that find-and-fix is not practical to carry out, is unclear in delineating water system responsibilities, recommends EPA "develops a health-based number," and focuses more on CCT than educating the customer on in-home lead mitigation. The other mentions a lack of a specific "fix." Some commenters suggested that Primacy Agencies should set guidelines for how to address localized issues.
Agency Response
EPA agrees with commenters that recommended clear delineation of the water system's primacy agencies' responsibilities, and has clarified that the water system must submit sampling results and recommendations to the state. Where CCT is being modified, the state is required (§141.82(j)(4)-(7)) to monitor or keep track of any system's progress. EPA determined it is important that find-and-fix follow up and corrective actions be specified in the rule to assure consistent steps to evaluate elevated levels of lead. EPA made several revisions in the final rule to clearly state the steps water systems must take and oversight requirements for states. EPA will work with states and stakeholders to assure technical guidance is available to inform the implementation of find-and-fix actions.
The Agency does not agree that the find-and-fix requirements should be eliminated. Identifying sources of lead in drinking water is a critical component to mitigating lead and improving public health protection. Also, a system may not exceed the lead AL, but can still have 10 percent of tap samples above 15 μg/L and it is important to understand if it is a localized problem or identifies water quality issues in the distribution system. EPA did, however, in response to commenters' concerns that more clarity was needed, revise the proposed requirements in the final rule to provide a step-wise process by which water systems can access individual sites, evaluate water quality at the site, and provide a recommendation for action the water system can take. See response to comment Sections 13.2 and 13.3 for a discussion of the changes made in response to comments for alternative approaches to the find-and-fix and to the site assessment process. In addition, EPA decided to keep find-and-fix in §141.82 as opposed to §141.86 since it is just lead and copper tap sampling and does not address WQP monitoring nor any assessment of CCT and since it is limited to the sites in the testing program, there is already a good idea about the lead source at the site. Section 141.85 focuses on public education and not lead and copper tap sampling, WQP sampling or corrosion control treatment  assessment, and therefore only addresses site assessment. Section 141.81 addresses the timing for completion of steps as systems optimize or re-optimize CCT whereas find-and-fix has an assessment to see if optimization/re-optimization is even necessary.
EPA also clarifies that in the case of an individual tap sample exceeding 10 μg/L (the trigger level), no find-and-fix actions are required. However, in the case of a tap sample above 15 μg/L, EPA restates that the Site Assessment (follow-up tap sampling), and Corrosion Control Treatment Assessment sampling must occur. The results are then evaluated to determine the possible source and subsequently propose a "fix" whether it be optimization of CCT, localized treatment, other distribution system actions, no action taken, etc. This "fix" should then be documented and submitted to the primacy agency for approval or specification of a different approach. If state-approved treatment recommendation requires installation of OCCT, the water system must follow the schedule outlined in §141.82(j)(5)-(7), concerning optimization and follow-up sampling post "fix." Systems in the process of optimizing or re-optimizing OCCT under §141.82(a)  -  (f) do not need to submit a recommendation for find-and-fix, since they are in the process of revising their CCT. Systems with multiple sites above the lead action level may be able to combine find-and-fix recommendations for sites that would be covered by the fix  -  localized CCT adjustment or flushing in an area of the distribution system that covers multiple sites with action level exceedances. If the source of the action level exceedance is in-home and outside of the jurisdiction of the water system, then the water system must document the finding in their "recommendation to the state (§141.82(j)(3)." See also the response to comment Section 13.5. In this case, the place where the exceedance occurs stays in the sampling pool, until the owner (or the water system) addresses the source of the exceedance and the site no longer meets the tiering criteria.
The Agency agrees with commenters that find-and-fix only applies to required tap sampling for compliance under §141.86 and not voluntary sampling and has revised the final rule accordingly. The LCRR does not require water systems to conduct find-and-fix activities for tap sampling they perform voluntarily although water systems may choose to conduct find-and-fix as a part of their voluntary tap sampling program. EPA disagrees with the commenter that there is overlap between the Site Assessment samples and the 90[th] percentile. The LCRR excludes the find-and-fix Site Assessment samples from the 90[th] percentile calculation.
EPA does not believe that a new health-based level for lead is necessary to prompt find-and-fix activities. EPA has established a health based MCLG for lead of zero and established an action level of 15 ug/L based on treatment feasibility.
13.2 Recommended Alternatives to Find-and-Fix
Summary of Comments
Several commenters recommended simplification of the current find-and-fix section to a three-step process called Sample Site Assessment. The commenters recommended the following three steps:

       Step 1 - Keep Step 1 of the find-and-fix section (§141.82(j)(1). The proposed Step 1 in the LCRR is the Corrosion Control Treatment (CCT) Assessment where the water system takes a WQP sample at a sampling point in the distribution system near the ALE (§141.82(j)(1)). However, Step 1 would also require the water system and the customer to identify on-site corrective actions.
       Step 2  -  The water system should be required to offer additional educational and sampling materials. The customer should also receive assistance in identifying lead service lines (LSLs). In the event of an exceedance, follow-up tap sampling should also be offered to neighboring homes with similar characteristics. Nevertheless, internal fixes should not be carried out by utilities.
       Step 3  -  The activities carried out in Steps 1 and 2 should be documented and the results and documentation should be provided to the state within 3 months.
Commenters suggested simplifying because: (1) the existing find-and-fix section exposes states and utilities to more liabilities and (2) reevaluation of CCT should not be determined on the basis of one tap sample greater than the lead action level. One commenter describes another three-step process, where the utility: (1) determines if the sample was collected properly, offers to re-test, and provides education materials on lead mitigation; (2) checks WQP sites for irregularities and addresses any CCT issues that may arise; and (3) sends documentation of activities to the state.
Alternatively, other commenters recommended different revisions which include:
       Each exceedance should trigger follow-up testing at the same site as the exceedance and a site nearby in the same pressure area.
       Based on the results of the exceedance and follow-up sample, the water system would then determine if there are any on-site sources of lead or there is a site-specific remedy.
       If during a round of monitoring, there is a pattern of exceedances, then the water system would consider optimizing its CCT.
According to one commenter, CCT is not always the best "fix" for a tap sample site that is greater than the lead action level or trigger level. This commenter also suggests that the state agency must be able to "review and approve" and lead mitigation actions.
There were two commenters that suggested changing "find-and-fix" to "Follow-Up Sampling." A commenter suggests the requirements should be placed in the regulation section for public education rather than in the requirements for CCT. The commenter suggested: (1) that one tap sample exceedance should not trigger a re-evaluation of CCT, (2) that follow-up tap sampling should focus more on mitigating site-specific lead issues and (3) that sampling from "nearby structures be eliminated from the rule."
Another commenter suggests an overhaul of the rule that would include the following steps:
       Schedule and carry out a follow-up tap sample, while providing the customer with information on lead and its mitigation.
       Help the customer with "initial remediation steps."
       Determine the materials that make up the home's plumbing.
       If there is an LSL, conduct more follow-up sampling.
       Document if there is a refusal and send any reports to the state at the end of the monitoring period.
       Gather all results and "include with the CCT evaluation."
       If there is a section of the distribution system that is lacking monitoring, the water system can relocate an existing WQP sampling site.
Commenters also gave specific recommendations for modifying find-and-fix. One commenter suggested a find-and-fix procedure that ensures quick communication of results and assistance to the owner in determining the causes of lead concentration exceedances. Recommendations included: (1) instructions on follow-up sampling logistics or sampling by a trained professional, (2) testing on lead and other corrosion-related WQPs, gathering of information on plumbing materials and water use patterns, (3) timely provision of results to customers, (4) and the keeping of gathered data by the water system to aid in any future review of system wide corrosion control issues. Meanwhile, another commenter added that there should be: (1) a list of follow-up sampling procedures provided by EPA, (2) an update for the follow-up samples in the Safe Drinking Water Information System (SDWIS), and (3) that the primacy agency should not be responsible for reviewing corrective actions. Conversely, a different commenter suggests that: (1) post-notification residents should be educated about lead mitigation and provided point-of-use (POU) lead filters; (2) the water system should determine the source of lead at the home; (3) there should be a full lead service line replacement (LSLR), if there is an LSL; and (4) there should be more public education about lead.
Several comments suggested that find-and-fix have a more site-specific focus. One comment suggests that the focus of this rule should be narrowed down to a single property and not the whole system. The commenter also recommended, as did others, that find-and-fix be moved out of the CCT section of the regulations. Two other commenters suggested the focus should be on LSLR. The latter commenter cited that 50-75 percent of lead exceedances are due to LSLs. Another commenter pointed out the lack of solutions in the rule and that the rule should allow for more choice in solutions.
Agency Response
EPA considered all comments on the find-and-fix provisions and has determined some modification to the steps proposed are appropriate for the final rule. These modifications include renaming the WQP monitoring and follow-up tap sampling to Corrosion Control Treatment Assessment and Site Assessment to more accurately convey their purpose. These two steps are critical to identifying the source of lead in drinking water, if possible, and evaluating water quality in the distribution system. However, the agency does not agree that additional requirements need be included for Site Assessment regarding the tap sampling protocol that should be used, due to the vast differences in LSLs and plumbing configurations in homes and buildings that would be sampled.
EPA reiterates that the purpose of find-and-fix is to identify or "fix" distribution system and corrosion control issues that might be responsible for elevated lead in drinking water; however, the find-and-fix provision in the final rule does not require the water system to conduct LSLR. Other provisions in the final rule may require LSLR. While a water system is not required to conduct LSLR as a result of find-and-fix, water systems may use the information from find-and-fix follow-up tap sampling to prioritize LSLRs. Similarly, the find-and-fix provisions do not require water systems to replace interior plumbing materials in the locations where elevated lead levels are found.
As noted above, in response to comments recommending a title change and an overhaul of find-and-fix provisions, EPA agrees and has renamed some steps and modified find-and-fix requirements to clarify and to convey the Agency intent. Step 1, which was previously referred to as "Water Quality Parameter Sampling", is now referred to as "Corrosion Control Treatment Assessment." Step 2 or "Follow-Up Tap Sampling" has been renamed "Site Assessment." These names are more representative of the reasons that these samples are collected. Further, the Agency has decided to maintain the original eight steps in the final rule in order to determine the source of the lead, if possible, and then determine if there is any systematic "fix" (i.e., OCCT, spot flushing).
13.3 Tap Sampling Site Assessment
Summary of Comments
A couple of commenters asked for clarification or modification of language in the regulation. One commenter recommends adding the word "lead" so that §141.82(j)(2) reads: "Water systems shall collect a follow-up lead sample at any tap sample site that exceeds the lead action level..." The same commenter also asked for more clarification in the regulatory language on what should happen if the result of follow-up tap sample is also above the action level.
A couple of commenters brought up issues related to the location of follow-up tap sampling. One commenter questioned the value of doing follow-up tap sampling at a site near the site where the exceedance occurred due to possible site-specific variations, even in places there the "structural characteristics" are similar. Another commenter recommended that follow-up tap sampling should be done by the water system, as opposed to the customer and should be used to engage the customer on lead sources and lead mitigation.
A few commenters touched on what to do if there is a refusal or lack of response after the water system has offered a follow-up tap sample. All commenters suggested that the choice of an alternate site for follow-up tap sampling in the case of a refusal or lack of response may miss certain site-specific lead sources such as fixtures. As a solution, one commenter proposed that water systems document that they made "best efforts to enter and sample the property."
A few commenters brought up the issue of what should be done when a sample site might not have a follow-up sample greater than the action level, or the issue has been resolved. One commenter has asked if a tap sampling site should be removed if the customer rejects a follow-up sample. Another commenter recommended that the rule contain instructions on whether the sampling site should be maintained in the case that follow-up sampling shows that the lead source is an in-house fixture (i.e., faucet). Another commenter has suggested that the follow-up tap sample include a verification sample.
A couple of commenters noted the specific sampling procedure of the follow-up sample. One commenter suggested that the rule language concerning follow-up tap samples is "too vague." The same commenter recommends EPA list "pre-established tap sample collection procedures and volumes" for targeted lead detection. Another commenter mentioned that a follow-up tap sample is not enough to confirm an exceedance. Another commenter expressed a preference for "having waterworks collect the second sample using the same procedures as the first," for a more "direct comparison." The commenter was concerned that "giv[ing] waterworks leeway" in sample collection could lead to instances where a "sample will mask a high lead level and would lead the customer to believe there was no risk associated with their water."
There are a couple commenters that raise concerns with the follow-up tap sampling timeline. One commenter mentioned that the regulation is unclear if the deadline for follow-up tap sampling is 30 days after the time the first sample was taken or from the time the laboratory detected the high results. Another commenter recommends the timeline be shortened to 14 days. A third commenter stated that if the follow-up tap sample is a confirmation sample then "collecting it 30 days from receipt of results of the first sample may be too late." If the sample is "a test to see if changes altering CCT in the area have eliminated the issue," then "EPA should extend the follow-up monitoring to 60 days from obtaining the original sample result."
Agency Response
The LCRR requires a two-pronged sampling approach to determine the possible cause of a tap sample greater than 15 μg/L. Site Assessment sampling determines if the cause of the elevated level of lead is due to a specific source of lead and to educate the consumer. Site Assessment sampling must be completed within 30 days. The 30-day timeline takes into account the logistics of coordinating tap sampling with the customer. Results from both CCT Assessment and Site Assessment samples should aid the water system and the customer in determining if the cause of the elevated lead concentration is due to site-specific or systemic issues.
EPA agrees that situations may occur when a customer refuses or is non-responsive to the water system's request to collect a follow-up tap sample and obtaining an alternative similar site may not be possible or appropriate. EPA agrees that sampling at a different site in the vicinity will not help assess the lead source at the site that was above 15 μg/L, so the final rule does not require systems to do this. EPA notes there is no obligation to conduct follow-up tap sampling at an alternative site nearby with similar characteristics and allows water systems to provide documentation to the state, explaining why it was unable to collect a follow-up sample in the event of refusal or non-response. In response to concerns that were raised regarding follow-up tap sampling in case of refusal or lack of response, the Agency has modified find-and-fix to more clearly state that in the case of lack of response or refusal of a follow-up tap sample, the water system must provide the state with the appropriate documentation of the refusal or lack of response.
In response to comments about replacing tap sampling sites following find-and-fix activities, EPA notes sites can be removed from the tap sampling pool if they have been remediated and no longer meet the tiering criteria. For example, when an LSL has been replaced at a single-family residence, then the site no longer meets the Tier 1 criteria and should be replaced with a site that meets the Tier 1 criteria. Sites that continue to meet the tiering criteria should be retained in the sampling pool.
In response to comments addressing sampling issues, the Agency has decided to maintain flexibility for the tap sampling protocol for collecting the follow-up sample. The agency does not agree that additional requirements need be included for Site Assessment with regard to the tap sampling protocol that should be used, due to the vast differences in LSLs and plumbing configurations in homes and buildings that would be sampled. Water systems may use the protocol they determine to be the best method for understanding the source of lead in drinking water at a particular site.
In response to comments on the follow-up tap sampling timeline, the Agency has determined that the 30-day timeline for collecting the follow-up tap sample is feasible. In order to collect a follow-up tap sample, the water system would need to coordinate with the customer on an appropriate time for sample collection. Circumstances, such as the customer's limited availability, may present challenges to collecting a tap sample. Therefore, 30 days should be ample time to resolve any issues with the customer prior to follow-up tap sample collection. If the water system is unable to carry out follow-up tap sampling (i.e., the customer refuses a follow-up tap sample or there is a lack of response), the water system is responsible for documenting the reason for not carrying out the sampling.
13.4 Recommendations for CCT and Distribution System Fixes
Summary of Comments
A significant number of commenters expressed concerns that a single elevated lead tap sample could trigger a system-wide corrosion control installation or re-optimization. One commenter stated that requiring public notification for the entire utility if one lead sample is over the action limit and requiring the installation of corrosion control equipment for the entire utility if the cause of a sample exceedance is listed as corrosive water in one home, is excessive. Others commented that Corrosion Control Treatment Assessment in § 141.82(j)(1) is unwarranted, inappropriate, or a disproportionate response which could result in expensive and time-consuming distribution system evaluations. Many commented that corrosion control adjustments should only be made in response to data demonstrating that current corrosion control is deficient throughout the distribution system, and not in response to a small number of samples. Another commenter suggested "individual sample results over the action level should only require a check that treatment was operating properly and achieving its optimum water quality parameters: systems should determine that there were no treatment upsets and that each parameter was within the state approved limits." A couple of commenters maintain that any optimization or review of CCT should be through trend analysis and not based on a one-time sample result. Commenters also brought up issues related to determining the in-home sources of lead after a tap sample is found to be greater than the action level. Another commenter suggests that solutions to single exceedances focus more on in-home actions (education about lead in the home) and water distribution system actions (i.e., flushing, nitrification monitoring). These recommendations are supported by the localized nature of the WQP site results, which was mentioned by a different commenter.
One commenter requested clarity on § 141.82(j)(4), where "[t]he State shall approve the treatment recommendation [from § 141.82(j)(3)] or specify a different approach." The commenter requested, "via rule or guidance, what `different approaches' [in § 141.82(j)(4)] would be appropriate at a single location where treatment changes will not correct the issue," noting that only "certain actions (such as treatment changes and service line replacements) can be taken by the supply." Another commenter suggested including a flushing program as an option for reducing elevated lead concentrations and provided anecdotal data illustrating this approach's potential for reducing the presence of lead at individual sites.
A couple commenters expressed concern that additional WQP sites that would be added with every single tap sample greater than the lead action level of 15 μg/L. One commenter mentioned that the addition of a new WQP monitoring site would be an extra burden and each system would have a unique number of WQP monitoring sites to "meet compliance." Meanwhile, another commenter called the addition of a WQP site and an investigation into the CCT after a single exceedance "irresponsible." One commenter suggested instead to "track compliance with this section and others based on when the State is notified of the sample result." Another commenter suggested improving the SDWIS database so that primacy agencies keep track of the number of water quality monitoring sites.
Agency Response
The find-and-fix provision does not require CCT installation or re-optimization in response to an individual tap sample exceedance of 15 μg/L. It requires water systems to engage in the process of taking a follow-up tap sample to help the water system determine the potential source of lead contamination (e.g., premise plumbing, LSL) and a WQP sample to help determine if CCT is optimized, if additional WQP sites are needed, and/or WQPs set by the state are being met. In addition to the follow-up tap sample and the WQP sampling, the water system must evaluate the results of the monitoring to determine whether distribution system actions are necessary. CCT adjustment is one of the possible distribution actions identified in § 141.82(j)(3), but it may not be necessary to address every exceedance. If the water system does not have CCT and is required to install it, then as per § 141.82(j)(5), the water system "must follow the schedule in § 141.81(e)."
In response to comments, EPA made several modifications to the find-and-fix requirements to clarify the steps and actions water systems must take to comply. There is nothing in the final find-and-fix provision of the final rule that requires systems to "fix" premise pluming or conduct LSLR. The final rule requires water systems to include in their recommendation to the state the cause of the elevated lead level if known, their recommended distribution system or CCT action, or justification for not recommending any adjustment of CCT or other distribution system actions. The state has six months to approve the system's recommendation or specify a different approach. In the case the water system takes CCT or distribution actions, the water system has 12 months to complete the state-approved approach. Afterwards, the water system would need to conduct the necessary WQP and follow-up tap sampling (See § 141.82(j)(6)-(8)). EPA has determined that in some instances the localized elevated levels of lead may indicate that an adjustment to CCT may be needed to assure optimized corrosion control throughout the distribution system; therefore, revisions to CCT are among the actions that systems should consider when preparing their recommendations following a find-and-fix. Further, the final rule emphasizes localized distribution system management as the likely fix. Distribution system mitigation strategies could include flushing or other strategies to improve water quality management.
In response to comments regarding the addition of WQP sites, the final rule establishes a cap of twice the number of the minimum WQP sampling sites that are specified in the previous LCR (§141.87(a)(2)). If the number of sites exceeds this cap, then the state has the discretion to "switch out" these sites. EPA also agrees with commenters who suggested there needs to be a process whereby additional WQP sites can be removed. Therefore, the final rule allows removal of WQP sites during the CCT evaluation conducted during the sanitary survey.
13.5 Water System and Homeowner Responsibilities
Summary of Comments
A significant number of commenters suggested that find-and-fix should focus more on in-home lead sources, mitigation, and engagement with customers. Meanwhile, another clearly states that "The focus in the final rule should be lead service line removal and filter provision for immediately lead risk reduction." Many commenters view find-and-fix as a way to "engage" the owner on the sources of lead contamination and avail them of any possible lead mitigation strategies. One commenter stated that the proposal would "be invaluable if sampling error, non-representative plumbing features, and/or other discrepancies were found to be the root cause(s) of one or more elevated results." Commenters have expressed concern that the find-and-fix section of the LCRR deals with issues that are outside of the jurisdiction of the water system. Two commenters stated that exceedances may be due to in-home issues such as fixtures and piping. Several commenters mentioned that water systems cannot "fix" issues that are on private property. Another commenter adds that "Public water system operators and samplers are not necessarily certified plumbers and may not be familiar with household plumbing." Nevertheless, one comment recommends that the water system determine if there are any site-specific issues that may be responsible for the exceedance.
Commenters have highlighted certain responsibility issues that could be raised due to find-and-fix requirements, if the source of lead is in-home. Commenters stated that water systems are not responsible for entering private homes to fix site specific lead issues. A couple of commenters request more clarity in terms of defining the responsibilities of a water system with respect to lead issues that may be in the home. Other comments recommend including clearer regulatory text that exempts water systems from having to enter private residences to fix site-specific lead issues. One commenter raises the issue that the preamble text could be misinterpreted as requiring water systems to "make corrections to private plumbing." This commenter recommends more clear language. A couple commenters ask for regulatory language that clearly exempts the water system from mitigating elevated lead levels if the source is found to be onsite. One commenter requested clarification on situations where the corrective action is LSLR but the owner refuses to replace their portion of the LSL. Another suggests incentives to customers to address onsite issues related to the lead exceedance. A couple commenters recommended specific changes in the regulatory text.
Agency Response
The Agency does not agree with commenters who suggest that find-and-fix should have its primary focus on in-home causes of elevated lead. The find-and-fix provision in the LCRR requires uses a two-pronged approach to evaluate the potential causes of elevated lead to assess lead sources at the site and to evaluate the water quality in the distribution system to determine if actions within the distribution system are needed, such as spot flush or CCT re-assessment. EPA points out that Site Assessment coupled with the corrosion control assessment, can be used to help determine the cause of the lead exceedance. EPA determined that conducting the follow-up tap sampling  provides the opportunity for a water system to discuss potential in-home lead remediation if needed, but also requires the water system to evaluate water quality in the distribution system to identify any potential distribution system maintenance or other actions to improve water quality.
EPA agrees that the LCRR should not make it the responsibility of a water system to replace premise plumbing. The final rule clarifies that the water system must document to the state the cause of the elevated lead level, if known. EPA notes that water systems should make customers at the tap sample site aware when there are sources of lead in premise plumbing so they will be able to make informed decisions about how best to mitigate lead contamination that is not addressed by system actions such as CCT.
13.6 Schedule for Fix
Summary of Comments
One commenter recommended shortening the timeframe for corrective actions under find-and-fix. Another commented that a 30-day timeframe for "resolving" lead issues with the customer is "reasonable." Meanwhile, a third commenter would like for the regulation to clarify how find-and-fix is implemented when the water system has already had a system-wide lead action level exceedance and is currently "in the process of installing, optimizing, or re-optimizing treatment."
Agency Response
EPA concluded that 30 days is feasible for water systems to collect the follow-up tap sample. EPA determined that a 12-month timeframe allows the water system and the state time to carry out the distribution system "fix" of a CCT adjustment if needed. This is followed by another 12-month period to conduct testing to determine if the recommended fix successfully resulted in a reduction in lead concentration. In the case of a tap sample greater than 15 ug/L occurring when the water system is optimizing CCT, the results from WQP and follow-up tap sampling may inform CCT or other water system actions.
14 System Reporting to Primacy Agency