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Proposed Rule2023-26148

National Primary Drinking Water Regulations for Lead and Copper: Improvements (LCRI)

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Published

December 6, 2023

Issuing agencies

Environmental Protection Agency

Abstract

The U.S. Environmental Protection Agency (EPA) is proposing revisions to the National Primary Drinking Water Regulation (NPDWR) for lead and copper under the authority of the Safe Drinking Water Act (SDWA). In this document, EPA is proposing to require water systems to replace lead service lines, remove the lead trigger level, reduce the lead action level to 0.010 mg/L, and strengthen tap sampling procedures, among other changes that would improve public health protection and simplify the rule relative to the 2021 Lead and Copper Rule Revisions (LCRR). This proposed rule provides improvements in the additional following areas: corrosion control treatment, public education and consumer awareness, requirements for small systems, and sampling in schools and child care facilities. EPA's proposed rule aims to address potential disproportionate impacts of lead in drinking water in communities, including through proposed lead service line replacement and public education, among other areas of the proposed rule.

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[Federal Register Volume 88, Number 233 (Wednesday, December 6, 2023)]
[Proposed Rules]
[Pages 84878-85090]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-26148]

[[Page 84877]]

Vol. 88

Wednesday,

No. 233

December 6, 2023

Part II

Environmental Protection Agency

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40 CFR Parts 141 and 142

National Primary Drinking Water Regulations for Lead and Copper:
Improvements (LCRI); Proposed Rule

Federal Register / Vol. 88 , No. 233 / Wednesday, December 6, 2023 /
Proposed Rules

[[Page 84878]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 141 and 142

[EPA-HQ-OW-2022-0801; FRL-5423.2-01-OW]
RIN 2040-AG16

National Primary Drinking Water Regulations for Lead and Copper:
Improvements (LCRI)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; request for public comment; notice of public
hearing.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is proposing
revisions to the National Primary Drinking Water Regulation (NPDWR) for
lead and copper under the authority of the Safe Drinking Water Act
(SDWA). In this document, EPA is proposing to require water systems to
replace lead service lines, remove the lead trigger level, reduce the
lead action level to 0.010 mg/L, and strengthen tap sampling
procedures, among other changes that would improve public health
protection and simplify the rule relative to the 2021 Lead and Copper
Rule Revisions (LCRR). This proposed rule provides improvements in the
additional following areas: corrosion control treatment, public
education and consumer awareness, requirements for small systems, and
sampling in schools and child care facilities. EPA's proposed rule aims
to address potential disproportionate impacts of lead in drinking water
in communities, including through proposed lead service line
replacement and public education, among other areas of the proposed
rule.

DATES: Comments must be received on or before February 5, 2024.
Comments on the information collection provisions submitted to the
Office of Management and Budget (OMB) under the Paperwork Reduction Act
(PRA) are best assured of consideration by OMB if OMB receives a copy
of your comments on or before January 5, 2024. Public hearing: EPA will
hold a virtual public hearing on January 16, 2024, information is
available at <a href="https://www.epa.gov/ground-water-and-drinking-water/lead-and-copper-rule-improvements">https://www.epa.gov/ground-water-and-drinking-water/lead-and-copper-rule-improvements</a>. Please refer to the SUPPLEMENTARY
INFORMATION section for additional information on the public hearing.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OW-2022-0801, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
(our preferred method). Follow the online instructions for submitting
comments.
<bullet> Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Office of Ground Water and Drinking Water Docket, Mail Code
28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.
<bullet> Hand Delivery or Courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operations are 8:30 a.m. to 4:30 p.m.,
Monday through Friday (except Federal Holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Michael Goldberg, Standards and Risk
Management Division, Office of Ground Water and Drinking Water, U.S.
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Mail Code
4607M, Washington, DC 20460; telephone number: (202) 564-1379; email
address: <a href="/cdn-cgi/l/email-protection#8bc7c8d9c2cbeefbeaa5ece4fd">[email&#160;protected]</a>. For more information visit <a href="https://www.epa.gov/ground-water-and-drinking-water/lead-and-copper-rule-improvements">https://www.epa.gov/ground-water-and-drinking-water/lead-and-copper-rule-improvements</a>.
Individuals who have speech or other communication disabilities may use
a relay service to reach the phone number above. To learn more about
how to make an accessible telephone call, visit the web page for the
Federal Communications Commission's Telecommunications Relay Service,
<a href="https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs">https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs</a>.

SUPPLEMENTARY INFORMATION:

I. Executive Summary
II. Public Participation
A. Written Comments
B. Participation in a Virtual Public Hearing
C. Previous Opportunities for Public Engagement
III. General Information
A. What is EPA proposing?
B. Does this action apply to me?
C. Dates for Compliance
IV. Background
A. Overview of Lead and Lead Exposures Through Drinking Water
B. Human Health Effects of Lead and Copper
1. Lead
2. Copper
C. Regulatory History
D. Statutory Authority
E. Anti-Backsliding Analysis
F. White House Lead Pipe and Paint Action Plan and EPA's
Strategy To Reduce Lead Exposures and Disparities in U.S.
Communities
G. Bipartisan Infrastructure Law and Other Financial Resources
H. Lead Exposure and Environmental Justice, Equity, and Federal
Civil Rights
V. Proposed Revisions to 40 CFR Subpart I Control of Lead and Copper
A. Regulatory Approach
B. Service Line Replacement
1. Mandatory Full Service Line Replacement and SDWA Requirements
2. Feasibility of Proposed Service Line Replacement Requirement
and Deferred Deadlines
3. Service Line Replacement Rate
4. Scope of Mandatory Service Line Replacement Requirement
5. Water System Access to Full Service Line
6. Risk Mitigation Activities To Reduce Lead Exposures
7. Service Line Replacement Plan
8. Impact of State and Local Laws on Service Line Replacement
9. Environmental Justice Concerns
C. Tap Sampling for Lead and Copper
1. Sample Collection Locations and Methods
2. Sample Collection Frequency
3. 90th Percentile Lead Calculation
D. Service Line Inventory
1. Timeline To Identify All Unknown Service Lines
2. Inventory Validation Requirements
3. Service Line Addresses
4. Lead Connectors
E. Corrosion Control Treatment
1. LCRI Proposed CCT Changes
2. Lead Action Level and Trigger Level
F. Water Quality Parameter Monitoring
1. Systems Required To Monitor for Water Quality Parameters
2. Distribution System and Site Assessment
G. Compliance Alternatives for a Lead Action Level Exceedance
for Small Community Water Systems and Non-Transient Non-Community
Water Systems
H. Public Education
1. Feasibility of Public Education Requirements
2. Service Line Related Outreach
3. Individual Notification of Tap Sample Results
4. Other Public Education Materials
5. Requirements for Language Updates and Accessibility
I. Additional Requirements for Systems With Multiple Lead Action
Level Exceedances
J. Lead Sampling at Schools and Child Care Facilities
1. Proposed LCRI Requirements
2. Proposed Waiver Requirements
3. Public Information About Lead Sampling in Schools and Child
Care Facilities
K. Reporting and Recordkeeping
1. System Reporting Requirements
2. State Recordkeeping Requirements
3. State Reporting Requirements

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L. Other Proposed Revisions to 40 CFR Part 141
1. Consumer Confidence Report (40 CFR Part 141, Subpart O)
2. Public Notification Rule (40 CFR Part 141, Subpart Q)
3. Definitions
VI. Rule Areas for Which EPA Is Not Proposing Revisions
VII. Rule Implementation and Enforcement
A. What are the rule compliance dates?
B. What are the requirements for primacy?
C. What are the special primacy requirements?
VIII. Economic Analysis
A. Affected Entities and Major Data Sources Used To Characterize
the Sample Universe
B. Overview of the Cost-Benefit Model
C. Cost Analysis
1. Drinking Water System Costs
2. Annualized per Household Costs
3. State Costs
4. Costs Impacts Associated With Additional Phosphate Usage
D. Benefits Analysis
1. Modeled Drinking Water Lead Concentrations
2. Blood Lead Modeling
3. Estimating Blood Lead Levels in Children (0-7 Year Olds)
4. Estimating Older Child and Adult Blood Lead Levels
5. Quantifying and Monetizing Health Endpoints
6. Estimating IQ Benefits
7. Estimated ADHD Benefits
8. Estimated Low Birth Weight Benefits
9. Estimated Cardiovascular Disease Premature Mortality Benefits
10. Total Monetized Benefits
E. Cost-Benefit Comparison
1. Non-Monetized Costs
2. Non-Quantified Non-Monetized Benefits
F. Other Regulatory Options Considered
1. Alternative Lead Action Levels
2. Alternative Service Line Replacement Rate
3. Alternative Definition of Lead Content Service Lines To Be
Replaced
4. Alternative Service Line Replacement Deferral Threshold
5. Alternative Temporary Filter Programs for Systems With
Multiple Lead Action Level Exceedances
6. Alternative Size Threshold for Small System Compliance
Flexibility
G. Cost-Benefit Determination
IX. Request for Comment
X. Statutory and Executive Order Reviews
A. Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 14094 (Modernizing Regulatory Review)
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA) as Amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA)
D. The Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132 (Federalism)
F. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
G. Executive Order 13045 (Protection of Children From
Environmental Health and Safety Risks)
H. Executive Order 13211 (Actions That Significantly Affect
Energy Supply, Distribution, or Use)
I. National Technology Transfer and Advancement Act of 1995
J. Executive Order 12898 (Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations) and Executive Order 14096 (Revitalizing Our Nation's
Commitment to Environmental Justice for All)
K. Consultations With the Science Advisory Board (SAB) and the
National Drinking Water Advisory Council (NDWAC)
1. SAB
2. NDWAC
L. Consultation With the Department of Health and Human Services
Under SDWA Section 1412(d)
XI. References

I. Executive Summary

The United States Environmental Protection Agency's (EPA) mission
is to protect human health and the environment. There is no known safe
level of lead exposure. Exposure to drinking water contaminated with
lead can cause serious human health impacts including
neurodevelopmental problems in children and heart disease in adults.
Young children and pregnant people are especially susceptible to the
impacts of lead exposures. Reduction in lead in drinking water will
reduce negative neurodevelopmental outcomes for children as well as
reducing a range of health risk to adults. EPA is proposing the Lead
and Copper Rule Improvements (LCRI) to significantly reduce exposure to
lead through drinking water. The proposal builds on the 2021 Lead and
Copper Rule Revisions (LCRR) and the original 1991 Lead and Copper Rule
(LCR). In accordance with 5 U.S.C. 553(b)(4), a summary of this rule
may be found at Docket ID No. EPA-HQ-OW-2022-0801 at <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>.
EPA conducted a review of the LCRR in accordance with Executive
Order 13990 \1\ and announced its intention to strengthen the LCRR with
a new rulemaking, the LCRI, to address key issues and opportunities
identified in the review. The proposed LCRI addresses the priorities
EPA identified in the LCRR review by proposing to equitably replace all
lead service lines (LSLs) in the nation, better identify where LSLs are
and act in communities most at risk of lead exposure, and streamline
and improve implementation of the rule. This proposed LCRI is the
culmination of numerous meaningful consultations with stakeholders and
the public during the LCRR review and development of the proposed LCRI.
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\1\ Protecting Public Health and the Environment and Restoring
Science to Tackle the Climate Crisis (86 FR 7037, January 20, 2021).
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EPA has found based upon its evaluation of available data and
stakeholder input that although the LCRR would improve public health
protection in comparison to the previous version of the rule, there are
significant opportunities to further improve upon it to achieve
increased protection of communities from lead exposure through drinking
water. The proposed LCRI strengthens key elements of the rule in three
main focus areas: Replacing All Lead Service Lines, Reducing Complexity
for Public Health Protection, and Increasing Transparency and Informing
the Public. The proposal also includes an updated benefits and costs
analysis, updates the compliance dates, and outlines the public
participation process.

Replacing All Lead Service Lines

Historically, lead pipes,\2\ as well as lead-bearing fixtures and
solder, were commonly used in water distribution systems and home
plumbing. Previous efforts to reduce lead in drinking water prioritized
corrosion control to reduce lead levels at the tap. Following corrosion
control, some water systems would be required to take additional
actions, including service line replacement and public education.
Replacing the lead service lines does not eliminate lead from tap water
because plumbing systems inside homes and buildings (i.e., premise
plumbing) can also contain lead components. Buildings and homes older
than 1986 can still have LSLs connecting the building's plumbing system
to the main water supply line under the street. These lines can
deteriorate or corrode, releasing lead particles into the drinking
water (Sandvig et al., 2008). The science is clear that there is no
known safe level of exposure to lead in drinking water, especially for
children. Among other effects, lead exposure can cause damage to the
brain and kidneys and can interfere with the production of red blood
cells that carry oxygen to all parts of the body. In children, even at
low

[[Page 84880]]

levels, lead exposure can cause health effects like lower intelligence
quotient (IQ), learning and behavioral problems. In adults, health
effects include risk of heart disease, high blood pressure, kidney or
nervous system problems, and cancer. When LSLs are present, they
represent the greatest lead exposure source through drinking water
(Sandvig et al., 2008).\3\ Based on over 30 years of implementing the
LCR, EPA has determined that requiring lead service line replacements
based on 90th percentile lead levels is insufficient to protect public
health.
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\2\ EPA does not believe that there are lead water mains in the
United States and if they do occur it is extremely rare. The poor
structural integrity of lead pipes that are more than two inches in
diameter means that lead was primarily used in pipes of smaller
diameter such as service lines. Conversely, the water mains that
distribute water throughout a city or town tend to be six inches or
larger in diameter. The common water main materials include ductile
iron, PVC, asbestos cement, HDPE, and concrete steel. The oldest
water mains are cast iron and asbestos cement (Folkman, 2018).
\3\ Sandvig et al. (2008) found that LSLs contributed an average
of approximately 50 to 75 percent of the total lead mass measured at
the tap, while premise piping and the faucet contributed
approximately 20 to 35 percent and 1 to 3 percent, respectively. At
sites with no LSL, premise piping and the faucet contributed a
greater percentage of lead mass to the total lead mass measured at
the tap (approximately 55 percent and 12 percent, respectively),
while main samples ranged from approximately 3 to 15 percent.
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As a result, EPA is proposing the elimination of all LSLs and
certain galvanized service lines from water systems in 10 years or
less. The proposed LCRI provides, in limited circumstances, additional
time for some systems to complete system-wide full service line
replacement. EPA proposes that water systems must replace LSLs and
certain galvanized service lines regardless of the lead levels
occurring in tap or other drinking water samples. This proposal would
significantly reduce the potential for lead releases into drinking
water. In addition, while corrosion control is generally effective at
reducing lead to low levels, elimination of LSLs can result in even
greater public health protection by eliminating a lead exposure source
and minimizes the opportunities for error that have often occurred over
the years.
Knowing where lead pipes are is critical to replacing them
efficiently and equitably. Under the proposed LCRI, all water systems
would be required to regularly update their service line inventories,
create a service line replacement plan, and identify all service lines
of unknown material by the replacement deadline. EPA is proposing that
water systems use a validation process to ensure the service line
inventory is accurate. Water systems would also be required to track
lead connectors in their inventories and replace them as they are
encountered. LSLs in communities throughout the United States can often
be found in lower-income and underserved neighborhoods. Under the
proposed LCRI, water systems are encouraged to prioritize service line
replacement in the most efficient, effective, and equitable way to
eliminate exposure to lead and protect public health.

Reducing Complexity and Improving Public Health Protection

The proposed LCRI reduces the complexity of the rule and includes
provisions that support more efficient implementation by water systems
while reducing lead exposure in more communities. EPA is proposing to
lower the lead action level to 0.010 mg/L and eliminate the lead
trigger level to simplify the rule and require water systems to act
earlier. Water systems with continually high levels of lead determined
by having multiple lead action level exceedances would be required to
conduct additional outreach to consumers about lead in the drinking
water and make filters certified to reduce lead available for
consumers.
EPA also proposes an updated tap sampling protocol that would
require systems to collect first liter and fifth liter samples at sites
with LSLs. This new method would better represent water that has been
stagnant within the service line and the plumbing, helping water
systems better understand the effectiveness of their corrosion control
treatment. EPA is also proposing to further streamline the rule by
deferring the optimal corrosion control treatment and re-optimized
optimal corrosion control treatment processes for systems that can
remove 100 percent of lead and galvanized requiring replacement (GRR)
service lines within five years of the date the system is triggered
into the corrosion control treatment steps.
The LCRI proposal retains flexibilities for small systems serving
3,300 persons or fewer, allowing them to choose among three options if
they exceed the lead action level: installing optimized corrosion
control treatment, installing and maintaining point-of-use devices, or
replacing all lead-bearing plumbing. Lead service line replacement
would no longer be available as a remedial action when small systems
exceed the lead action level since the proposed LCRI requires all
systems to conduct mandatory service line replacement.
To reduce duplicative sampling efforts, EPA is proposing to expand
the allowable waivers for water systems to conduct sampling and public
education in schools and child care facilities to include some sampling
efforts conducted prior to the rule compliance date, such as sampling
conducted through the Water Infrastructure Improvements for the Nation
(WIIN) Act grant program.

Increasing Transparency and Informing the Public

To increase transparency and better inform the public of lead
exposure and health risks, EPA is proposing to improve the public
education requirements by updating the content and delivery frequency
for more proactive messaging about lead in drinking water. The proposal
also introduces new public education requirements for lead and copper.
The proposed rule would require systems to provide additional
information when notifying consumers who are served by a lead, GRR, or
unknown service line annually. In addition, when a system samples for
lead or copper at a residence, it must deliver to residents the results
within three days, regardless of the lead or copper levels in the
sample. Water systems that exceed the lead action level would be
required to provide public education no later than 60 days after the
end of a sampling period and continue providing public education with
this same frequency until the system no longer exceeds the action
level. This public education is in addition to the requirement for
water systems to provide public notification of a lead action level
exceedance within 24 hours.
Water systems would also be required to deliver public education
and notice materials to residents when water-related work is conducted
that could disturb lead, galvanized requiring replacement, or unknown
service lines, including disturbances caused when systems are
conducting inventories. When systems are working to replace LSLs, they
would be required to encourage customers to allow full replacement of
their lead lines. Systems would be required to reach out four times
using at least two different methods to contact customers.
The annual Consumer Confidence Reports are one important way that
customers learn about the quality of their drinking water. As part of
the LCRI rulemaking, EPA also proposes to revise the Consumer
Confidence Report requirements to include an informational statement
about lead that has been updated to improve risk communication, updated
lead health effects language, information about the system's efforts to
sample in schools and child care facilities, and how to access the
community's service line replacement plan.

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Benefits and Costs Analysis

The Safe Drinking Water Act (SDWA) \4\ requires that EPA determine
whether the benefits of the proposed rule justify the costs. As part of
its Health Risk Reduction and Cost Analysis (HRRCA), EPA must evaluate
quantifiable and nonquantifiable health risk reduction benefits and
costs of compliance with the proposed treatment techniques. In
accordance with these requirements, the EPA Administrator has
determined that the quantified and nonquantifiable benefits of the
proposed LCRI justify the costs (see section VIII. of this document for
additional discussion on EPA's HRRCA).
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\4\ Public Law 93-523, as amended (42 U.S.C. 300f et seq.).
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To evaluate these benefits and costs, EPA determined which entities
would be affected by the LCRI, quantified costs using available data,
and described nonquantifiable costs. EPA quantified benefits by
estimating and monetizing avoided reductions in IQ, cases of attention-
deficit/hyperactivity disorder (ADHD) in children, lower birth weights
in children, and cases of cardiovascular disease premature mortality in
adults associated with LSL and GRR service line replacement, corrosion
control treatment (CCT) installation and re-optimization, and the
temporary use of point-of-use devices and water filters in systems with
multiple action level exceedances. Prior efforts to quantify benefits
associated reductions of lead in drinking water have focused on
neurodevelopmental outcomes in children because of the lifelong impact
on their ability to thrive. The current benefits assessment also
incorporates recent scientific analyses that allow better quantifying
benefits to adults. Because existing techniques for quantifying
cardiovascular disease premature mortality yield larger benefits per
person than for neurological impacts on children, the total benefits
are driven by the cardiovascular disease premature mortality benefits.
The larger monetized benefit to adults is not intended to distract from
EPA's focus on reducing children's exposure to lead.
In addition, EPA qualitatively assessed the potential for the
proposed rule's additional lead public education and service line
inventory lead connector and public access requirements that target
consumers directly, schools and child care facilities, health agencies,
and people living in homes with LSLs and GRR service lines to promote
averting behavior on the part of the exposed public, including LSL and
GRR service line replacement, resulting in reductions in the negative
health impacts of lead. Health benefits qualitatively evaluated include
cardiovascular morbidity effects, renal effects, reproductive and
developmental effects (apart from ADHD), immunological effects,
neurological effects (apart from children's IQ), and cancer. In
addition, people served by systems required to install or re-optimize
CCT under the proposed LCRI and living in homes with premise plumbing
containing lead, but not an LSL or GRR service line, will receive
health benefits from reduced lead exposure which were not quantified in
the analysis of the proposed rule. Increased use of CCT resulting from
the proposed rule's lead requirements may reduce the negative health
impacts of copper such as acute gastrointestinal conditions and health
effects associated with Wilson's Disease. Other unquantifiable co-
benefits associated with the increased use of corrosion inhibitors by
systems include extending the useful life of plumbing components and
appliances (e.g., water heaters), reduced plumbing maintenance costs,
reduced treated water loss from the distribution system due to leaks,
and reduced potential liability and damages from broken pipes in
buildings.
To support eliminating LSLs, the Infrastructure Investment and Jobs
Act (Pub. L. 117-58), also referred to as the Bipartisan Infrastructure
Law (BIL), included $15 billion specifically appropriated for lead
service line replacement (LSLR) projects and associated activities
directly connected to the identification of LSL and planning for the
replacement of LSLs.

Compliance and Public Process

SDWA requires EPA to establish and enforce drinking water
regulations. EPA delegates primary enforcement responsibility (called
primacy) for public water systems to States and Indian Tribes if they
meet certain requirements. Currently, primacy agencies are enforcing
the Lead and Copper Rule. Water systems must comply with the LCRR
beginning October 16, 2024. EPA intends to promulgate the LCRI prior to
that date; in addition to proposing new and improved requirements, EPA
is proposing to revise the compliance dates for most of the LCRR's
requirements.
EPA conducted a review of the LCRR in accordance with Executive
Order 13990 and announced its intention to strengthen the LCRR with a
new rulemaking, the LCRI, to address key issues and opportunities
identified in the review. This proposed LCRI is the culmination of
numerous meaningful consultations with stakeholders and the public
during the LCRR review and development of the proposed LCRI. Public
participation and consultations with key stakeholders are critical in
developing an implementable rule that protects public health to the
extent feasible. Throughout the review of the LCRR and the engagements
and consultations conducted in the development of the proposed LCRI,
EPA engaged with many stakeholders and received valuable feedback that
the Agency considered to develop this proposed rule (see section IV.C.
and section X. of this document on EPA's LCRR review engagements and
EPA's Statutory and Executive Order Reviews).
The Agency is requesting comment on this action and has identified
specific areas where public input will be especially helpful for EPA in
developing the final rule (see section IX. of this document on specific
topics highlighted for public comment). In addition to seeking written
input, EPA will be holding a public hearing on January 16, 2024.
Details on participating in the public hearing are provided in section
II.B. of this document.

II. Public Participation

A. Written Comments

Submit your comments, identified by Docket ID No. EPA-HQ-OW-2022-
0801, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> (EPA's preferred method), or the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. EPA may publish
any comment received to its public docket. Do not submit to EPA's
docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> any information you consider to
be Confidential Business Information (CBI), Proprietary Business
Information (PBI), or other information where disclosure is restricted
by statute. Multimedia submissions (audio, video, etc.) must be
accompanied by a written comment. The written comment is considered the
official comment and should include discussion of all points you wish
to make. EPA will generally not consider comments or comment contents
located outside of the primary submission (i.e., on the web, cloud, or
other file sharing system). Please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a> for additional submission methods; the full EPA
public comment policy; information about CBI, PBI, or multimedia
submissions; and general guidance on providing effective comments.

[[Page 84882]]

B. Participation in a Virtual Public Hearing

EPA is hosting a virtual public hearing on January 16, 2023, to
receive public comment and will present the proposed requirements of
the draft National Primary Drinking Water Regulation (NPDWR). The
hearing will be held virtually from approximately 11 a.m. until
approximately 7 p.m. eastern time. EPA will begin pre-registering
speakers and attendees for the virtual hearing upon publication of this
document in the Federal Register. To attend and/or register to speak at
the virtual hearing, please use the online registration form available
at: <a href="https://www.epa.gov/ground-water-and-drinking-water/lead-and-copper-rule-improvements">https://www.epa.gov/ground-water-and-drinking-water/lead-and-copper-rule-improvements</a>.
The last day to pre-register to speak at the hearing will be
January 9, 2023. On January 12, 2023, EPA will post a general agenda
for the hearing that will list pre-registered speakers in approximate,
sequential order at: <a href="https://www.epa.gov/ground-water-and-drinking-water/lead-and-copper-rule-improvements">https://www.epa.gov/ground-water-and-drinking-water/lead-and-copper-rule-improvements</a>. The number of online
connections available for the hearing is limited and will be offered on
a first come, first-serve basis. To submit visual aids to support your
oral comment, please contact <a href="/cdn-cgi/l/email-protection#eaa6a9b8a3aa8f9a8bc48d859c">[email&#160;protected]</a> for guidelines and
instructions by January 12, 2023.
Registration will remain open for the duration of the hearing
itself for those wishing to provide oral comment during unscheduled
testimony; however, early registration is strongly encouraged to ensure
proper accommodations and adequate timing. EPA will make every effort
to follow the schedule as closely as possible on the day of the
hearing; however, please plan for the hearings to run either ahead of
schedule or behind schedule. Please note that the public hearing may
close early if all business is finished.
EPA encourages commenters to provide EPA with a copy of their oral
testimony electronically by submitting it to the public docket at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, Docket ID: EPA-HQ-OW-2022-0801. Oral
comments will be time limited to maximize participation, which may
result in the full statement not being given during the virtual hearing
itself. Therefore, EPA also recommends submitting the text of oral
comments as written comments to the rulemaking docket. EPA will also
accept written comments submitted to the public docket, as provided
above, from persons not making an oral comment. Written statements and
supporting information submitted during the comment period will be
considered with the same weight as oral comments and supporting
information presented at the public hearing.
Please note that any updates made to any aspect of the hearing will
be posted online at: <a href="https://www.epa.gov/ground-water-and-drinking-water/lead-and-copper-rule-improvements">https://www.epa.gov/ground-water-and-drinking-water/lead-and-copper-rule-improvements</a>. While EPA expects the hearing
to go forward as set forth above, please monitor the Agency's website
or contact <a href="/cdn-cgi/l/email-protection#561a15041f1633263778313920">[email&#160;protected]</a> to determine if there are any updates. EPA does
not intend to publish a document in the Federal Register announcing
updates about the public virtual hearing.
If you require any accommodations for the day of the hearing, such
as language translation, captioning, or special accommodations, please
indicate this and describe your needs when you register. All requests
for accommodations should be submitted by January 9, 2023. Without this
one-week advance notice, EPA may not be able to arrange for
accommodations. Please contact <a href="/cdn-cgi/l/email-protection#83cfc0d1cac3e6f3e2ade4ecf5">[email&#160;protected]</a> with any questions related
to the virtual public hearing.

C. Previous Opportunities for Public Engagement

EPA provided numerous opportunities for public engagement and input
on these proposed regulations. EPA conducted a series of virtual
meetings with stakeholders, States, communities impacted by lead
exposure, and the public and obtained verbal and written feedback on
the LCRR and the proposed LCRI. A summary of the LCRR review and
stakeholder engagements is described in section IV.C. of this document,
and a summary of the external engagements for the proposed LCRI is
described in section X. of this document. The input received during
these exchanges was considered in developing the proposed LCRI
requirements as described in the subsequent sections of this document.

III. General Information

The proposed LCRI builds upon the previous lead and copper rules.
This proposal would revise the most recent lead and copper rule, the
LCRR, which was promulgated on January 15, 2021 (86 FR 4198, USEPA,
2021a). Key revisions in this proposed LCRI address the opportunities
identified in the Review of the National Primary Drinking Water
Regulation: Lead and Copper Rule Revisions (or LCRR review) including
proactive and equitable replacement of all LSLs, strengthening
compliance with tap sampling to better identify communities most at
risk of elevated lead in drinking water to better compel actions to
reduce health risks, and reducing the complexity of the regulation from
the action and trigger level construct and ensuring that the rule is
more easily understandable (86 FR 71574; USEPA, 2021b). The proposed
LCRI was developed considering the input received in numerous
meaningful consultations and engagements over several years, including
during LCRR review and in stakeholder outreach conducted to inform the
development of this proposal.

A. What is EPA proposing?

EPA is proposing revisions to require mandatory full service line
replacement of LSLs and GRR service lines under the control of the
water system regardless of the system's 90th percentile lead level.
Water systems would be required to complete replacements within ten
years, with limited exceptions. EPA is proposing to revise the
requirements for updates to the service line inventories under the LCRR
to require systems to categorize all unknown service lines in order to
identify all LSLs and GRR service lines by the replacement deadline.
Systems would also be required to track lead connectors in their
inventories and replace them whenever encountered. All water systems
with known or potential LSLs or GRR service lines would need to prepare
a service line replacement plan that would help to ensure an equitable
replacement of all LSLs or GRR service lines by the replacement
deadline. EPA is also proposing to lower the lead action level from
0.015 mg/L to 0.010 mg/L, which would result in more water systems
controlling corrosion and providing public education to reduce drinking
water lead exposure. Systems that exceed the lead action level three or
more times in a five-year period would be required to take additional
actions to provide public education and make filters available. EPA is
also proposing an updated tap sampling protocol that would require the
use of the higher of the first- or fifth-liter values at LSL sites to
be used when calculating the system's 90th percentile at sites with
LSLs. The first- and fifth-liter values represent water that has been
stagnant in premise plumbing (plumbing within buildings) and within the
service line as well as more accurately identify where higher lead
levels might be present.
EPA is proposing that States set optimal water quality parameters
for medium systems (serving greater than 10,000 persons and less than
or equal to 50,000 persons) with corrosion control

[[Page 84883]]

treatment and that these systems meet those parameters for the system
to demonstrate that optimal corrosion control treatment (OCCT) is being
maintained. EPA is proposing to defer OCCT or re-optimized OCCT for
systems that can replace all LSLs and GRR service lines within five
years of the date they are triggered into CCT steps at a 20 percent
annual replacement rate. EPA is also proposing that systems with OCCT
meeting their optimal water quality parameters are not required to re-
optimize their CCT more than once following a lead action level
exceedance, unless required to do so by the State upon finding that it
is necessary.
EPA is proposing to update the public education requirements,
instituting changes to content and delivery frequency for more
proactive messaging about lead in drinking water and introducing new
public education requirements for lead and copper.
EPA is proposing to revise the small system compliance flexibility
provision to eliminate LSLR as a compliance option, as all systems
would conduct mandatory service line replacement regardless of their
90th percentile lead level. EPA is also proposing to change the
eligibility threshold for the flexibility for community water systems
(CWSs) to those serving 3,300 or fewer persons.
EPA is proposing to retain the requirements for CWSs to conduct
sampling and public education in schools and child care facilities but
to expand the available waivers to include sampling efforts conducted
prior to the rule compliance date, including sampling conducted through
the WIIN Act grant program. EPA is also proposing to restructure and
clarify areas of the rule where requirements would not change in an
effort to increase the clarity of the rule and increase systems'
ability to implement the rule.
Exhibit 1 compares the major differences among the pre-2021 LCR
(promulgated in 1991 and last revised in 2007), the LCRR, and the
proposed LCRI. In general, only the changes between each rulemaking are
shown in Exhibit 1. Asterisks (*) in the pre-2021 LCR and LCRR columns
denote requirements that would be retained in the proposed LCRI.
BILLING CODE 6560-50-P

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BILLING CODE 6560-50-C

B. Does this action apply to me?

Entities that could potentially be affected by the proposed LCRI
include the following:
[GRAPHIC] [TIFF OMITTED] TP06DE23.013

This Exhibit is not intended to be exhaustive, but rather provides
a guide for readers regarding entities that could be affected by this
action if promulgated. To determine whether a facility or activities
could be affected by this action, please read the full preamble and
proposed rule.
As part of this notice for the proposed rule, ``State'' refers to
the agency of the State, Tribal, or territorial government that has
jurisdiction over public water

[[Page 84897]]

systems consistent with the definition of ``State'' in 40 CFR 141.2.
During any period when a State or Tribal government does not have
primary enforcement responsibility pursuant to section 1413 of SDWA,
the term ``State'' means the relevant Regional Administrator of the
EPA. For questions regarding the applicability of this action to a
particular entity, consult the person listed in the FOR FURTHER
INFORMATION CONTACT section.

C. Dates for Compliance

EPA is proposing that water systems begin to comply with the LCRI
three years after promulgation of the final rule. In accordance with
SDWA section 1412(b)(10), the Administrator, or a State (in the case of
an individual system), may allow up to two additional years to comply
with a treatment technique if the Administrator or State (in the case
of an individual system) determines that additional time is necessary
for capital improvements. Where a State, or EPA where it has primacy,
chooses to provide such an extension, the system would have up to five
years from the rule's promulgation date to begin compliance with the
treatment technique. EPA is not proposing to provide a two-year
extension nationwide because EPA has not determined that an additional
two years is necessary for water systems nationwide to make capital
improvements to begin compliance with the LCRI. Systems have been
subject to more stringent requirements for lead service line
replacement and corrosion control treatment since the promulgation of
the LCRR that allowed time to prepare and obtain funding for any
necessary capital improvements. Moreover, there is significant funding
available through the Bipartisan Infrastructure Law and other sources
for LSL identification and replacement. Finally, EPA notes that the
requirements in the proposed LCRI for which capital improvements may be
necessary would not be required to be completed by the compliance date
for the rule. Instead, the compliance date marks the beginning of an
extended time period for systems to conduct lead service line
replacement and install new or re-optimized corrosion control treatment
under the revised requirements. EPA does not believe that systems
nationwide need an additional two years to comply with the rule as
proposed.
Under SDWA section 1416, States may exempt water systems from any
treatment technique requirement for no more than three years after the
otherwise applicable compliance date. For a small system that does not
serve more than 3,300 persons and which needs financial assistance for
the necessary improvements, an exemption may be renewed for one or more
two-year periods, but not to exceed a total of six years. No exemption
may be granted without a finding that:
<bullet> Due to compelling factors (which may include economic
factors, including qualification of the public water system as a system
serving a disadvantaged community pursuant to SDWA section 1452(d)),\5\
the public water system is unable to comply with such contaminant level
or treatment technique requirement, or to implement measures to develop
an alternative source of water supply;
---------------------------------------------------------------------------

\5\ The term ``disadvantaged community'' used in SDWA section
1416 here refers to the statutory definition of ``disadvantaged
community'' provided at SDWA section 1452(d)(3): ``[T]he term
`disadvantaged community' means the service area of a public water
system that meets affordability criteria established after public
review and comment by the State in which the public water system is
located. The Administrator may publish information to assist States
in establishing affordability criteria.''
---------------------------------------------------------------------------

<bullet> The public water system was in operation on the effective
date of such contaminant level or treatment technique requirement, or,
for a system that was not in operation by that date, only if no
reasonable alternative source of drinking water is available to such
new system;
<bullet> The granting of the exemption will not result in an
unreasonable risk to health; and
<bullet> Management or restructuring changes (or both) cannot
reasonably be made that will result in compliance with this title, or
if compliance cannot be achieved, improve the quality of the drinking
water.

IV. Background

A. Overview of Lead and Lead Exposures Through Drinking Water

Lead is toxic to humans and animals, causing harmful health
effects. Lead is a naturally occurring element found in small amounts
in the Earth's crust. Lead and lead compounds have been used in a wide
variety of products found in and around homes, including paint,
ceramics, pipes and plumbing materials, solders, gasoline, batteries,
ammunition, and cosmetics. Lead can enter drinking water when plumbing
materials that contain lead corrode, especially where the water is
highly acidic or has a low mineral content that corrodes pipes and
fixtures. The most common sources of lead in drinking water are lead
pipes, faucets, and fixtures. In homes with lead pipes that connect the
home to the water main, also known as lead service lines or LSLs, these
pipes are typically the most significant source of lead in water. Lead
pipes are more likely to be found in older cities and homes built
before 1986. Among homes without LSLs, the most common source of lead
in drinking water is from brass or chrome-plated brass faucets and
plumbing with lead solder.

B. Human Health Effects of Lead and Copper

1. Lead
Exposure to lead can cause harmful health effects for people of all
ages, especially pregnant people, infants, and young children (CDC,
2022a; CDC, 2022b; CDC, 2023). Lead has acute and chronic impacts on
the body. Lead exposure causes damage to the brain and kidneys and can
interfere with the production of red blood cells that carry oxygen to
all parts of the body (ATSDR, 2020).
Developing fetuses, infants, and young children are most
susceptible to the harmful health effects of lead (ATSDR, 2020).
Exposure to lead is known to present serious health risks to the brain
and nervous system of children (USEPA, 2013). Young children and
infants are particularly vulnerable to the physical, cognitive, and
behavioral effects of lead due to their sensitive developmental stages.
There is no known safe level of exposure to lead. Scientific studies
have demonstrated that there is an increased risk of health effects in
children even when their blood lead levels are less than 3.5 micrograms
per deciliter) (CDC, 2022c) and in adults even when blood lead levels
are less than 10 micrograms per deciliter) (NTP, 2012). Low-level lead
exposure is of particular concern for children because their growing
bodies absorb more lead per pound than adults do, and their developing
brains and nervous systems are more sensitive to the damaging effects
of lead (ATSDR, 2020).
EPA estimates that drinking water can make up at least 20 percent
of a person's total exposure to lead (56 FR 26548, USEPA, 1991). When a
child is not routinely exposed to other sources of lead (e.g., dust
from legacy lead paint or legacy contaminated soils), most of their
exposure may come from drinking water. Infants who consume mostly
formula mixed with tap water can, depending on the level of lead in the
water system and other sources of lead in the home, receive 40 to 60
percent of their exposure to lead from drinking water used in the
formula (53 FR 31516, USEPA, 1988; Stanek et al., 2020).

[[Page 84898]]

Scientists have linked lead's effects on the brain with lowered IQ and
attention disorders in children, among other health impacts (USEPA,
2013; Lanphear et al., 2019; Ji et al., 2018). In 1991, EPA established
a maximum contaminant level goal (MCLG) for lead of zero. SDWA requires
EPA to set MCLGs at the level at which no known or anticipated adverse
effects on the health of persons would occur, allowing for a margin of
safety. EPA established the MCLG of zero in part due to there being no
clear threshold for some non-carcinogenic health effects and due to
lead being a probable carcinogen (USEPA, 1991).
Blood lead levels are an indication of current exposure. Over time,
lead can accumulate in the body. Lead is stored in a person's bones,
binding to calcium, and it can be released later in life. For example,
when calcium is mobilized in the mother's body during pregnancy, lead
that is released from the pregnant person's bones and can pass to the
fetus. Lead can also be passed through breastmilk to the nursing infant
or child. Lead exposure can result in serious health effects to the
developing fetus and infant. Studies document increased risk of
miscarriage, low birth weight, and reduced gestation time (USEPA,
2013). In utero and early childhood exposure to lead is associated with
increased risk to the baby's brain and/or nervous system, manifesting
as, for instance, an increased risk of learning or behavioral problems
in life (USEPA, 2013). Some studies also suggest lead exposure is
associated with risk to the developing renal (kidney) system (USEPA,
2013).
As noted above, studies also have documented an association between
adult blood lead levels and increased risk of cardiovascular disease,
manifesting as an increase in risk of cardiovascular disease premature
mortality. Occupational exposure to lead is also associated with a
number of significant health effects in adults as well, particularly
renal and gastrointestinal. The 2013 Integrated Science Assessment for
Lead (USEPA, 2013), the U.S. Department of Health and Human Services
(HHS) National Toxicology Program (NTP) Monograph on Health Effects of
Low-Level Lead (NTP, 2012), the Agency for Toxic Substances and Disease
Registry (ATSDR) 2020 Toxicological Profile for Lead (ATSDR, 2020), and
peer-reviewed studies have documented associations between lead and
cancer (Wei and Zhu, 2020) as well as lead and adverse cardiovascular
(Park and Han, 2021), renal (Harari et al., 2018), reproductive (Shi et
al., 2021; Lee et al., 2020), immunological (Krueger and Wade, 2016),
and neurological effects (Andrew et al., 2022). EPA's Integrated Risk
Information System (IRIS) Chemical Assessment Summary provides
additional health effects information on lead (USEPA, 2004a). EPA is
currently updating the Integrated Science Assessment for Lead (USEPA,
2023a). For a more detailed explanation of the health effects
associated with lead for children and adults, see Appendix D of the
Economic Analysis (USEPA, 2023b).
2. Copper
Copper is an essential trace element required for several metabolic
processes; however, excess copper intake is toxic and linked to various
adverse health effects. Acute gastrointestinal conditions are the most
common adverse health effects observed among adults and children.
Chronic exposure to copper is particularly a concern for people with
Wilson's disease, an autosomal recessive genetic disorder of copper
metabolism affecting 1 in 30,000 individuals (Ala et al., 2007). These
individuals are prone to copper accumulation in body tissue, which can
lead to liver damage, neurological, and/or psychiatric symptoms (Dorsey
and Ingerman, 2004). Additional information on the health effects
associated with copper are available in Appendix E of the Economic
Analysis (USEPA, 2023b).

C. Regulatory History

Exercising its longstanding authority under the SDWA, on June 7,
1991, EPA promulgated the LCR with the goal of improving public health
by reducing lead and copper levels at consumer taps (56 FR 26460,
USEPA, 1991). The LCR established maximum contaminant level goals
(MCLGs) of 0 mg/L for lead and 1.3 mg/L for copper. In addition, the
LCR established an NPDWR consisting of treatment technique requirements
that include LSLR, CCT, source water treatment, and public education.
The LCR established requirements for CWSs and NTNCWSs to conduct
monitoring at consumer taps. The rule established action levels of
0.015 mg/L for lead and 1.3 mg/L for copper. If more than 10 percent of
tap sample results (i.e., the 90th percentile value of tap sample
concentrations), collected during any monitoring period, exceed the
action level, water systems must take actions including installing and/
or re-optimizing CCT, conducting public education, treating source
water if it contributes to lead and copper levels at the tap, and
replacing lead service lines if the system continues to exceed the
action level after completing CCT steps and installing CCT. An action
level exceedance is not a violation of the rule; however, failure to
take the subsequent required actions (e.g., LSLR, CCT, PE) results in a
violation of the treatment technique or monitoring and reporting
requirements.
On January 12, 2000, EPA promulgated minor revisions to the LCR
(LCRMR) (65 FR 1950, USEPA, 2000a). These minor revisions streamlined
the LCR, promoted consistent national implementation, and reduced the
reporting burden on affected entities. The LCRMR did not change the
MCLGs or action levels for lead and copper or change the rule's basic
requirements. One of the provisions of the LCRMR required States to
report the 90th percentile lead value to EPA's Safe Drinking Water
Information System (SDWIS) database for all water systems serving
greater than 3,300 persons. States must report the 90th percentile lead
value for water systems serving 3,300 or fewer persons only if the
water system exceeds the action level. The new reporting requirements
became effective in 2002.\6\
---------------------------------------------------------------------------

\6\ In 2004, EPA published minor corrections to the LCR to
reinstate text that was inadvertently removed from the rule during
the previous revision (69 FR 38850, USEPA, 2004c).
---------------------------------------------------------------------------

From 2000 to 2004, the District of Columbia experienced incidences
of elevated drinking water lead levels, prompting EPA to undertake a
review of the LCR to determine ``whether elevated drinking water lead
levels were a national problem'' and to identify actions to improve
rule implementation (72 FR 57784, USEPA, 2007a; USEPA, 2007b; Brown et
al., 2011). EPA specifically considered the number of systems that
failed to meet the lead action level, if a significant percentage of
the population received water that exceeded the action level, how well
the LCR worked to reduce drinking water lead levels, and if the rule
was being effectively implemented, particularly with respect to
monitoring and public education requirements. As part of the national
review, EPA held four expert workshops to discuss elements of the LCR,
collected and evaluated lead concentration data and other information
required under the LCR, and evaluated State implementation efforts to
better understand challenges and needs experienced by States and water
systems. In March 2005, EPA released a Drinking Water Lead Reduction
Plan, outlining a series of short- and long-term goals to improve
implementation of the LCR, including revisions to the LCR (USEPA,
2005). On October 10, 2007, EPA promulgated a set of short-term
regulatory revisions

[[Page 84899]]

and clarifications (72 FR 57782, USEPA, 2007a). The short-term
revisions strengthened implementation of the LCR in the areas of
monitoring, treatment, customer awareness, LSLR, and improving
compliance with the public education requirements.
Long-term issues, requiring additional research and input, were
identified for a subsequent set of rule revisions. EPA conducted
extensive engagement with stakeholders to inform subsequent rule
development, including a 2011 Scientific Advisory Board (SAB)
consultation on the science of partial LSLR and the formation of a
National Drinking Water Advisory Council (NDWAC) Working Group in 2014
to provide recommendations (USEPA, 2011; NDWAC, 2015). In 2016, EPA
released a white paper summarizing NDWAC recommendations and
identifying key areas for rule development, noting that ``lead crises
in Washington, DC, and in Flint, Michigan, and the subsequent national
attention focused on lead in drinking water in other communities, have
underscored significant challenges in the implementation of the current
rule, including a rule structure that for many systems only compels
protective actions after public health threats have been identified''
(USEPA, 2016a). Notably, the white paper discussed the issue of
mandatory, proactive LSLR as an opportunity to eliminate a primary
source of lead in drinking water rather than only replacing LSLs after
a lead action level exceedance, and how to address lead exposure risks
resulting from partial LSLR. Other identified issues included the need
for stronger CCT requirements, including re-evaluation after source
water or treatment changes, improved tap sampling procedures to address
concerns about practices used to avoid action level exceedances, and
increased public transparency such as access to information about LSLs
and sharing of data.
These long-term issues were intended to be addressed in the LCRR
which was promulgated on January 15, 2021 (86 FR 4198, USEPA, 2021a).
The LCRR focused on six key areas for revision: identifying sites with
significant sources of lead in drinking water, strengthening CCT
requirements, closing loopholes in LSLR requirements, increasing
sampling reliability, improving risk communication, and introducing a
new lead sampling requirement at schools and child care facilities as
part of public education. Specifically, the LCRR included new
requirements for water systems to develop, and make publicly
accessible, LSL inventories and annually notify consumers if they are
served by an LSL, GRR service line, or service line of unknown
material. Additionally, the LCRR removed provisions allowing partial
service line replacement or ``test-outs'' (i.e., where a service line
sample measures below the lead action level) to count towards LSLR
requirements. The rule also revised monitoring requirements to
prioritize sampling at sites most likely to contain lead sources,
require a fifth-liter sample be taken at LSL sites, and prohibit the
use of language in sampling instructions that may result in samples
that underestimate lead levels.
The LCRR also established a lead trigger level at 0.010 mg/L to
require systems to take actions before an action level exceedance,
including taking steps to plan for CCT installation, re-optimizing CCT
if the system already installed CCT, establishing a goal-based LSLR
program, and increasing monitoring frequency. The LCRR made several
changes to the CCT requirements and established a requirement for water
systems to conduct follow-up actions at sites with individual
compliance sample concentrations exceeding 0.015 mg/L.
In the LCRR, EPA also revised its Public Notification Rule in 40
CFR part 141, subpart Q and made changes to the reporting requirements
for action level exceedances to implement 2016 amendments to section
1414 of SDWA to require public notification within 24 hours if the
system exceeds the lead action level.
The LCRR added new public education requirements, including
requirements to notify persons served by a known or suspected LSL, and
timely notify individuals when their lead tap sampling results exceed
the lead action level of 0.015 mg/L. Under the LCRR, systems that
exceed the lead trigger level of 0.010 mg/L not only had to conduct
goal-based LSLR but also are required to conduct additional public
outreach activities about lead in drinking water and opportunities to
replace LSLs if the system fails to meet the goal replacement rate.
The LCRR also added a new small system flexibility provision that
allowed CWSs serving 10,000 or fewer persons and all NTNCWSs that
exceeded the trigger level to choose and implement one out of four
compliance options (i.e., CCT, LSLR, point-of-use devices, replacement
of lead-bearing plumbing) if the system exceeds the lead action level.
On January 20, 2021, President Joseph R. Biden issued Executive
Order 13990: Protecting Public Health and the Environment and Restoring
Science to Tackle the Climate Crisis (86 FR 7037, January 20, 2021).
Executive Order 13990 required Federal agencies to ``review and . . .
take action to address the promulgation of Federal regulations and
other actions during the last 4 years that conflict with'' the
``national objectives,'' as provided in the executive order, including
to ``be guided by the best science and be protected by processes that
ensure the integrity of Federal decision-making'' by listening to the
science, to promote and protect public health and advance environmental
justice, among others. EPA was required to review the LCRR because EPA
promulgated the LCRR within the time frame specified by the executive
order, and the LCRR addresses public health through drinking water.
Additionally, after promulgation of the LCRR, EPA heard from
stakeholders on a range of concerns about the LCRR, including the lack
of requirements or incentives to replace all LSLs, the inclusion of the
trigger level made the rule unnecessarily complicated, and the
implementation burdens on systems and States.
To allow EPA to engage with stakeholders and review the LCRR before
it took effect, on March 12, 2021, EPA published the National Primary
Drinking Water Regulations: Lead and Copper Rule Revisions; Delay of
Effective Date (86 FR 14003, USEPA, 2021c), which delayed the effective
date of the LCRR from March 16, 2021, to June 17, 2021. On the same
day, EPA published the National Primary Drinking Water Regulations:
Lead and Copper Rule Revisions; Delay of Effective and Compliance Dates
(86 FR 14063, USEPA, 2021d), which proposed further delaying the
effective date of LCRR to December 16, 2021 to allow EPA to ``conduct a
review of the LCRR and consult with stakeholders, including those who
have been historically underserved by, or subject to discrimination in,
Federal policies and programs prior to the LCRR going into effect'' (86
FR 14063, USEPA, 2021d). On June 16, 2021, EPA issued a final rule
delaying the LCRR effective date to December 16, 2021, and the
compliance date from January 16, 2024 to October 16, 2024 ``to maintain
the same time period between the effective date and the compliance date
in the LCRR'' (86 FR 31941, USEPA, 2021e).
As part of the LCRR review, EPA held a series of virtual
engagements from April to August 2021 to obtain public input on the
LCRR. Consistent with Executive Order 13990, EPA engaged with States,
Tribes, and water utilities as well as people who have been

[[Page 84900]]

underrepresented in past rulemaking efforts. EPA also sought input from
community stakeholders in places that have concerns due to lead in
drinking water, particularly from individuals and communities that are
most at-risk of exposure to lead in drinking water.
Throughout this process, EPA hosted a series of 10 virtual
community roundtables with stakeholders in: Pittsburgh, PA; Newark, NJ;
Malden, MA; Washington, DC; Newburgh, NY; Benton Harbor and Highland
Park, MI; Flint and Detroit, MI; Memphis, TN; Chicago, IL; and
Milwaukee, WI. Each roundtable included a range of participants
representing local governments, community organizations, environmental
groups, local public water utilities, and public officials.
Participants shared their experiences with lead in their communities
and provided EPA with verbal and written comments on the LCRR. EPA also
held a roundtable with representatives from Tribes and Tribal
communities, a national stakeholder association roundtable, a national
co-regulator meeting, two public listening sessions, and a meeting with
organizations representing elected officials. Summaries of the meetings
and written comments from the public can be found in the docket, EPA-
HQ-OW-2021-0255 at <a href="https://regulations.gov/">https://regulations.gov/</a>.
On December 17, 2021, EPA published the results of the LCRR review
(86 FR 71574, USEPA, 2021b). EPA described the comments received as
part of the public engagement efforts conducted as part of the LCRR
review and determined that there are regulatory and non-regulatory
actions the Agency can take to reduce drinking water lead exposure.
While EPA found that the LCRR improved public health protection
relative to the LCR, the Agency also concluded that there are
significant opportunities to further improve the rule to support the
goal of proactively removing LSLs and protecting public health more
equitably (86 FR 71574, USEPA, 2021b). EPA also announced in the review
notice that the LCRR would go into effect to support near-term
development of actions to reduce lead in drinking water. At the same
time, EPA committed to developing a new proposed rule, the LCRI, to
strengthen key elements of the rule. EPA identified the following
policy objectives informed by the LCRR review: ``Replacing 100 percent
of lead service lines is an urgently needed action to protect all
Americans from the most significant source of lead in drinking water
systems; equitably improving public health protection for those who
cannot afford to replace the customer-owned portions of their LSLs;
improving the methods to identify and trigger action in communities
that are most at risk of elevated drinking water lead levels; and
exploring ways to reduce the complexity of the regulations'' (86 FR
71574; USEPA, 2021b). EPA also stated that it does not expect to
propose changes to the requirements for information to be submitted in
the initial LSL inventory or the associated October 16, 2024 compliance
date. EPA described the importance of maintaining this date, stating
that ``continued progress to identify LSLs is integral to lead
reduction efforts regardless of potential revisions to the rule. The
inventory provides critical information on the locations of potentially
high drinking water lead exposure within and across public water
systems, which will allow for quick action to reduce exposure'' (86 FR
71579, USEPA, 2021b). Specifically, EPA noted that development of
inventories nationwide over the near-term would assist water systems,
States, Tribes, and the Federal Government in determining the
prevalence of these lead sources and would, among other things, enable
water systems to begin planning for LSLR and apply for funding.

D. Statutory Authority

Establishment and Review of National Primary Drinking Water Regulations
EPA is publishing these proposed improvements to the LCRR under the
authority of SDWA, including sections 1412, 1413, 1414, 1417, 1445, and
1450 of the SDWA. 42 U.S.C. 300f et seq.
Congress passed SDWA in 1974, responding to ``accumulating evidence
that our drinking water contains unsafe levels of a large variety of
contaminants.'' Envtl. Def. Fund, Inc. v. Costle, 578 F.2d 337, 339
(D.C. Cir. 1978). In passing SDWA, Congress intended to ensure ``that
water supply systems serving the public meet minimum national standards
for protection of public health.'' H.R. Rep. No. 93-1185, at 1 (1974),
reprinted in 1974 U.S.C.C.A.N. 6454. SDWA is the primary Federal law
that protects the tap water provided to consumers by water systems
across the country. The primary regulatory tool for this protection is
section 1412 of SDWA under which EPA is authorized to issue standards
for drinking water served by water systems. These standards--entitled
``national primary drinking water regulations'' (NPDWRs)--are
accompanied by the setting of a ``maximum contaminant level goal''
(MCLG), which is set at a level at which there are no known or
anticipated adverse human health effects with an adequate margin of
safety. 42 U.S.C. 300g-1((a)(3) and (b)(4). Lead and copper are subject
to existing NPDWRs. Based on the health effects described above, in
1991, EPA established the MCLG for lead at 0 mg/L, and the MCLG for
copper at 1.3 mg/L.
SDWA section 1412(b)(9) states that ``The Administrator shall, not
less often than every 6 years, review and revise, as appropriate, each
national primary drinking water regulation promulgated under this
subchapter. Any revision of a national primary drinking water
regulation shall be promulgated in accordance with this section, except
that each revision shall maintain, or provide for greater, protection
of the health of persons.'' 42 U.S.C. 300g-1(b)(9). When EPA
promulgates a revised NPDWR, the Agency follows the applicable
procedures and requirements in section 1412 of SDWA, including those
related to (1) the use of best available, peer-reviewed science and
supporting studies; (2) presentation of information on public health
effects that is comprehensive, informative, and understandable; and (3)
a health risk reduction benefits and cost analysis of the rule in
sections 1412(b)(3)(A), (B), and (C) of SDWA, 42 U.S.C. 300g-
1(b)(3)(A)-(C).
Establishment of the Lead and Copper Rule as a Treatment Technique
In 1991, EPA promulgated the LCR, which established a treatment
technique in lieu of a maximum contaminant level (MCL) for lead and
copper (56 FR 26460, USEPA, 1991). This proposed rule, LCRI, would
revise the LCRR, which maintained the NPDWR as a treatment technique.
Section 1412(b)(7)(A) of SDWA authorizes EPA to ``promulgate a national
primary drinking water regulation that requires the use of a treatment
technique in lieu of establishing a maximum contaminant level, if the
Administrator makes a finding that it is not economically or
technologically feasible to ascertain the level of the contaminant.''
42 U.S.C. 300g-1(b)(7)(A). EPA's decision to promulgate a treatment
technique rule for lead instead of a MCL in 1991 has been upheld by the
United States Court of Appeals for the District of Columbia Circuit.
American Water Works Association v. EPA, 40 F.3d 1266, 1270-71 (D.C.
Cir. 1994). See section V.A. for discussion on EPA's findings and
rationale supporting a treatment technique determination.

[[Page 84901]]

Statutory Requirements Related to the Prevention of Adverse Health
Effects to the Extent Feasible
In establishing treatment technique requirements, the Administrator
is required to identify those treatment techniques ``which, in the
Administrator's judgment, would prevent known or anticipated adverse
effects on the health of persons to the extent feasible.'' 42 U.S.C.
300g-1(b)(7)(A). ``Feasible'' is defined in section 1412(b)(4)(D) of
SDWA as ``feasible with the use of the best technology, treatment
techniques and other means which the Administrator finds, after
examination for efficacy under field conditions and not solely under
laboratory conditions, are available (taking cost into
consideration)''. Specifically, EPA must assess the ``best
technology,'' as opposed to generally available technology, that has
been tested beyond the laboratory under full-scale conditions; however,
the technology need not be in widespread, full-scale use (SDWA section
1412(b)(4)(D)). The legislative history of this provision makes it
clear that ``feasibility'' is to be defined relative to ``what may
reasonably be afforded by large metropolitan or regional public water
systems'' (H.R. Rep. No. 93-1185 (1974), reprinted in 1974 U.S.C.C.A.N.
6454, 6471). See also S. Rep. No. 104-169, at 3 (1995) (feasibility is
based on best available technology affordable to ``large'' systems) and
City of Portland v. EPA, 507 F.3d 706 (D.C. Cir. 2007) (upholding EPA's
treatment technique for Cryptosporidium and the Agency's interpretation
that ``feasible'' means technically possible and affordable, and does
not include a cost/benefit determination). As a result, EPA may not set
different standards based solely on what is reasonably afforded by
small and medium systems. However, if EPA cannot identify any
affordable technologies for a particular category of small systems, EPA
must identify variance technologies that ``achieve the maximum
reduction or inactivation efficiency that is affordable'' and protect
public health (SDWA section 1412(b)(15)(A) and (B)).
SDWA provides for two exceptions to the requirement that a
treatment technique ``prevent known or anticipated adverse effects on
the health of persons to the extent feasible''. First, under SDWA
section 1412(b)(5), EPA is authorized to require the use of a treatment
technique to achieve a contaminant level other than the feasible level
if the feasible level would result in an increase in the health risk of
drinking water by increasing the concentration of other contaminants or
interfere with the efficacy of drinking water treatment techniques or
processes that are used to comply with other NPDWRs. Second, under SDWA
section 1412(b)(6)(A), if EPA determines that the benefits of a
treatment technique would not justify the costs of compliance, EPA may
promulgate a treatment technique for the contaminant that maximizes
health risk reduction benefits at a cost that is justified by the
benefits.
Notice and Recordkeeping Requirements
Section 1414(c) of SDWA, as amended by the WIIN Act, requires
public water systems to provide notice to the public if the water
system exceeds the lead action level. 42 U.S.C. 300g-3(c)(1)(D). SDWA
section 1414(c)(2) states that the Administrator ``shall by regulation
. . . prescribe the manner, frequency, form, and content for giving
notice''. 42 U.S.C. 300g-3(c)(2). Section 1414(c)(2)(C) of SDWA
specifies additional requirements related to the public notice if the
action level exceedance has the potential to have serious adverse
effects on human health as a result of short-term exposure, including
that it must ``be distributed as soon as practicable, but not later
than 24 hours'' after the water system learns of the action level
exceedance, and that the system must report the exceedance to both the
State and the Administrator within that same time period (42 U.S.C.
300g-3(c)(2)(C)(i) and (iii)). If a water system or State does not
issue the required public notice, SDWA section 1414(c)(2)(D) directs
EPA to issue the required public notice ``not later than 24 hours after
the Administrator is notified of the exceedance.'' EPA interprets
section 1414(c)(2)(C)(iii) of SDWA to require systems to report only
lead action level exceedances to the Administrator because the
requirements under section 1414 (c)(2)(D) are only triggered in the
event of an action level exceedance and not any violation of an NPDWR.
Section 1417(a)(2) of SDWA states that public water systems ``shall
identify and provide notice to persons that may be affected by lead
contamination of their drinking water'' where the contamination results
from the lead content of the construction materials of the public water
distribution system and/or corrosivity of the water supply sufficient
to cause leaching of lead. 42 U.S.C. 300g-6(a)(2)(A)(i) and (ii).
Section 1445(a) of SDWA provides that every person subject to a
requirement of SDWA or grantee shall establish and maintain records,
make reports, conduct monitoring, and provide information to the
Administrator as reasonably required by regulation to assist the
Administrator in establishing regulations under SDWA, determining
compliance with SDWA, administering any program of financial assistance
under SDWA, evaluating the health risks of unregulated contaminants,
and advising the public of such risks. 42 U.S.C. 300j-4(a).
Primacy Enforcement of National Primary Drinking Water Regulations
While EPA always retains its independent enforcement authority, the
Agency may authorize States, territories, and Tribes for primary
enforcement responsibility (``primacy''; primacy agencies are also
referred to as ``States'' in this preamble) to implement the NPDWRs
under SDWA section 1413(a)(1) when EPA has determined, among other
conditions, that the State has adopted regulations that are no less
stringent than the promulgated NPDWR. 42 U.S.C. 300g-2(a)(1).
Conditions for State primacy include, among other things, adequate
enforcement, including monitoring, inspections, recordkeeping, and
reporting. To obtain primacy for this rule, States must adopt
regulations no less stringent than the NPDWR within two years of
promulgation unless EPA grants the State a two-year extension. EPA must
approve or deny State primacy applications within 90 days of submission
to EPA. 42 U.S.C. 300g-2(b)(2). In some cases, a State submitting
revisions to adopt an NPDWR has primary enforcement authority for a new
regulation while EPA's decision on the primacy application is pending.
42 U.S.C. 300g-2(c). Section 1413(b)(1) of SDWA requires EPA to
establish regulations governing the primacy application and review
process ``with such modifications as the Administrator deems
appropriate.'' In addition to proposed revisions to the LCRR that are
more stringent, this notice includes proposed changes to the primacy
requirements related to this rule.
Section 1450 of SDWA authorizes the Administrator to prescribe such
regulations as are necessary or appropriate to carry out their
functions under the Act. 42 U.S.C. 300j-9.

E. Anti-Backsliding Analysis

Backsliding Analysis of LCRI Relative to LCR and LCRR
Section 1412(b)(9) of SDWA is known as the anti-backsliding
provision. Under this provision, EPA is required to ensure that ``each
revision'' of an NPDWR

[[Page 84902]]

``shall maintain, or provide for greater, protection of the health of
persons''. EPA has adopted a holistic framework that gives meaning to
the text, structure, and purpose of the anti-backsliding provision
based on the best reading of the statutory provision. EPA has
interpreted the term ``each revision'' to refer to a revision of an
NPDWR, meaning that each new rule that revises a current regulation,
shall maintain, or provide for greater health protection. The plain
meaning of ``revision'' is broad in scope and may contain multiple
parts. A treatment technique rule is an integrated set of actions
designed to reduce the level of exposure to a contaminant. As such, in
assessing whether a treatment technique rule maintains or provides for
greater health protection, EPA evaluates the entire treatment technique
rule as a whole, not on a component-by-component basis.
As described in the LCRR rulemaking, EPA has interpreted the
backsliding analysis for a treatment technique rule to be ``based on an
assessment of public health protection as a result of implementation of
a rule as a whole, rather than a comparison of numerical benchmarks
within the treatment technique rule'' (86 FR 4216, USEPA, 2021a).
Therefore, when analyzing each revision against the anti-backsliding
standard, EPA has compared the whole of the proposed LCRI (i.e., the
``revision''), along with components of the LCRR that EPA is not
revising, against the whole of the LCRR to assess whether the new rule
would maintain or improve public health protection. Further, EPA
compared the whole of the proposed LCRI to the whole of the LCRR
because the LCRR is the most recent revision to the NPDWR for lead and
copper.
Recognizing that water systems and States are not yet required to
comply with the LCRR until October 16, 2024, EPA has also assessed the
improved public health protection of the proposed LCRI, along with
elements of LCRR not proposed for revision, relative to the LCR as
currently implemented. Therefore, EPA compared the whole of the
proposed LCRI to the whole of the LCR, in addition to the LCRR.
EPA anticipates the proposed LCRI would improve public health
protection more than either the LCR or LCRR in accordance with section
1412(b)(9) of SDWA. Below, EPA has evaluated and provided a more
detailed breakdown of some of the most significant components that
would make the proposed LCRI, as a whole, more protective compared to
the LCR and LCRR. Specifically, EPA compared the proposed LCRI to the
LCRR because the LCRR is the most recent revision to the NPDWR for lead
and copper. Also, EPA compared the proposed LCRI to the LCR because
that is the NPDWR that water systems are currently implementing; at
present, water systems do not have to comply with the LCRR until
October 16, 2024.
The central feature of the proposed LCRI is the mandatory
replacement of LSLs and GRR service lines regardless of a lead action
level exceedance; this is a more preventive approach than under either
the LCR or LCRR. Replacement of LSLs and GRR service lines has been
shown to significantly reduce lead levels in drinking water (Camara et
al., 2013; Deshommes et al., 2018; Trueman et al., 2016), which can
improve public health by reducing the associated health impacts from
lead exposures. The LCR only required water systems to replace LSLs
systemwide if a system exceeded the lead action level and allowed them
to stop once lead levels were reduced below the lead action level. The
LCRR requires that systems replace LSLs if they exceed the lead action
level and initiate a goal-based replacement program if they exceed the
lead trigger level. The proposed LCRI would result in mandatory
systemwide replacement of LSLs and GRR service lines regardless of 90th
percentile lead levels and at a faster replacement rate, leading to
significant public health benefits resulting from the elimination of
these major lead sources. While EPA projected that 339,000 to 555,000
LSLs under control of the system would be expected to be replaced under
the LCRR of a 35-year period, the proposed LCRI requirements would
require replacement of all LSLs and GRR service lines under control of
the system (USEPA, 2020e, Exhibit C-1). This is a key element of the
proposed LCRI and is intended to provide both broader and more certain
lead risk reduction than any of the prior lead rules.
In the LCRI, EPA is proposing to remove the lead trigger level and
reduce the lead action level to 0.010 mg/L, which would require water
systems to take actions sooner than under the LCR and LCRR and at lower
lead levels while also simplifying rule requirements to enhance
effective implementation. This change would maintain or provide greater
health protection at all systems including those without LSLs or GRR
service lines as a result of the actions required of a system after an
action level exceedance (e.g., installation or re-optimization of
corrosion control treatment, public education). Similarly, EPA's
proposal to require use of the higher result of the first and fifth
liter tap sample at LSL sites is expected to result in more systems
that are required to install or re-optimize corrosion control and
provide notification and public education. While EPA is also proposing
to revise the OCCT requirements to not require systems that exceed the
action level to re-optimize their OCCT if they re-optimized once after
the compliance date for LCRI and are meeting their optimal water
quality parameters, the proposed LCRI would maintain or improve public
health protection for those systems. This is because resources would be
better devoted to other mitigation activities rather than repeating the
same steps, as well as the proposed LCRI would require those systems
that continue to exceed the action level to conduct additional public
education activities and make filters available upon meeting the
proposed criterial for having ``multiple lead action level
exceedances'' (see section V.I.). Also, if there have been no
significant source water or treatment changes (actions which themselves
can require a CCT study) a re-optimization study may yield the same
result as its previous study.
In addition, the LCRR allows small systems serving 10,000 persons
or fewer to choose between four compliance options if they exceed the
lead action level: LSLR, CCT installation, full lead-bearing plumbing
replacement, and use of point-of-use devices. The proposed LCRI would
require small water systems with LSLs or GRR service lines to conduct
mandatory service line replacement regardless of lead levels instead of
choosing between service line replacement and the other compliance
options. Accordingly, under the proposed LCRI, small water systems with
LSLs would be required to remove a significant source of lead and
protect against corrosion with either OCCT, point-of-use devices, or
plumbing replacement. Thus, the proposed LCRI would provide greater
protection of public health than the LCRR for systems with LSLs or GRR
service lines. For small systems, specifically those serving 3,300 or
fewer persons (for which EPA is proposing to lower the threshold from
10,000 under the LCRR), without LSLs or GRR service lines that exceed
the lead action level, they could choose and implement lead-bearing
plumbing replacement or point-of-use device installation and
maintenance in lieu of CCT if approved by the State.
EPA is proposing additional improvements across other rule areas
that will result in more actions taken at lower lead levels to better
protect public health. Exhibit 1 in section III.A. summarizes these
changes and

[[Page 84903]]

illustrates comparisons among the pre-2021 LCR, LCRR, and proposed LCRI
requirements.
As a whole, the proposed LCRI would improve public health
protection relative to the LCR and LCRR for the reasons described
above. This is supported by a comparison of the monetized benefits. See
Chapter 5, section 5.6.1 of the proposed LCRI Economic Analysis (USEPA,
2023b) for LCRR to LCRI monetized estimated health benefits comparisons
and Appendix C, of the proposed LCRI Economic Analysis for pre-2021 LCR
to LCRI monetized estimated health benefits comparisons. Through this
revision of the NPDWR for lead and copper, EPA is proposing a more
stringent and comprehensive set of lead reduction requirements compared
to the LCR or LCRR, including mandatory service line replacement; a
reduced action level for CCT, which would, among other things, serve as
a screen for small and medium water systems based on lead levels that
are generally representative of OCCT; and more robust and meaningful
public education. Further, EPA is aiming to improve public health
protections in communities facing the greatest risks from lead in
drinking water, particularly in areas facing cumulative environmental
justice impacts, through equity-driven proposed requirements for public
education and a strategy to prioritize service line replacement in
parts of communities based on factors including but not limited to
local communities, such as those disproportionately impacted by lead
and populations most sensitive to the effects of lead. Therefore, EPA
anticipates that the proposed LCRI, as a whole, would improve public
health protections relative to the LCR and LCRR in accordance with SDWA
section 1412(b)(9).
As part of the anti-backsliding analysis that the proposed LCRI, as
a whole, would improve public health protection relative to the LCR and
LCRR, EPA is also considering the proposed change to the LCRR
compliance dates for actions other than the service line inventory,
associated notification and reporting requirements, and the 24-hour
public notification requirement in 40 CFR part 141, subpart Q. EPA
began reviewing the LCRR in 2021. Through the consultations EPA
conducted as part of the LCRR review and the engagements and
consultations EPA held to support the development of the proposed LCRI,
many stakeholders, including States and water systems, provided
feedback on the challenge of implementing successive changes to the LCR
over a short period of time. Because of these challenges, as explained
further below, EPA is proposing that water systems continue to
implement the LCR requirements and the LCRR inventory requirements
between promulgation of the LCRI and the proposed compliance date of
three years after promulgation.
EPA previously recognized that the LCRR is an improvement in public
health protection over the LCR, especially in light of the inventory
requirements of the LCRR. The improvement of public health attributable
to the LCRR compared to the LCR is based primarily on the changes to
the treatment technique requirements of LSLR, OCCT, and public
education--actions that occur over extended periods of time in response
to tap sampling results that exceed certain thresholds. EPA does not
expect those projected improvements from the LCRR to be realized if EPA
promulgates yet another new regulatory framework for controlling lead
just as compliance with the LCRR is required. Moreover, EPA expects
that, if compliance with the entire LCRR is required starting October
16, 2024, it would negatively affect water systems' abilities to
realize the greater health risk reduction benefits of the proposed
LCRI.
If the LCRI is promulgated as proposed, and LCRI compliance is
required in the third year of LCRR implementation, systems and States
would be simultaneously tasked with implementation of two different
rules at the same time they are engaged in the startup activities for
the LCRI. The startup activities for water systems include reading and
training on the rule to understand its new requirements, creating a
staffing plan, and securing funds for compliance. The startup
activities for a State include adopting State regulations, modifying
data systems, and conducting internal and external training.
Compounding that challenge is the fact that systems and States would be
catching up on the LCRR startup activities that they may have postponed
in response to EPA's announcement of the proposed LCRI rulemaking. If
water systems are required to simultaneously implement the LCRR for the
first time and prepare for LCRI compliance, EPA expects that it would
be beyond the capacity of both water systems and States and therefore,
the expected benefits of one or both rules would not be realized.
Allowing water systems to transition from compliance with the LCR
to compliance with the LCRI, while requiring systems to comply with the
LCRR inventory requirements in the interim, would result in more full
service line replacements and thus, broader and faster health risk
reduction than if adequate planning for LCRI compliance did not take
place because of the diversion of scarce system and State resources
towards short-term implementation of the LCRR.

F. White House Lead Pipe and Paint Action Plan and EPA's Strategy To
Reduce Lead Exposures and Disparities in U.S. Communities

The development of a proposed NPDWR, the LCRI, is a key action of
the Lead Pipe and Paint Action Plan, released by the Biden-Harris
Administration in 2021 (The White House, 2021). The aim of the plan is
to mobilize resources from across the Federal Government through
funding made available from the Infrastructure Investment and Jobs Act,
also referred to as the Bipartisan Infrastructure Law (BIL), to reduce
lead exposure from pipes and paint containing lead. The plan includes a
goal of eliminating all LSLs and remediating lead paint.
In October 2022, EPA published the Strategy to Reduce Lead
Exposures and Disparities in U.S. Communities (or ``Lead Strategy'') to
``advance EPA's work to protect all people from lead with an emphasis
on high-risk communities'' (USEPA, 2022a). This Agency-wide Lead
Strategy promotes environmental justice in communities challenged with
lead and includes four key goals: (1) reduce community exposures to
lead sources; (2) identify communities with high lead exposures and
improve their health outcomes; (3) communicate more effectively with
stakeholders; and (4) support and conduct critical research to inform
efforts to reduce lead exposures and related health risks. The
development of the LCRI is a key action within EPA's Lead Strategy and
``reflects EPA's commitment to fulfilling the Biden-Harris
Administration's historic commitment of resources to replace lead pipes
and support lead paint removal under the Lead Pipe and Paint Action
Plan'' (USEPA, 2022a).

G. Bipartisan Infrastructure Law and Other Financial Resources

There are a number of pathways for systems to receive support for
LSLR and related activities, including low- to no-cost financing
through the Drinking Water State Revolving Fund (DWSRF), lead
remediation grants established by the WIIN Act and incorporated into
SDWA at sections 1459A, 1459B, and 1464 and low-cost financing from the
Water Infrastructure Finance and Innovation Act (WIFIA) program. EPA
strongly encourages water systems to

[[Page 84904]]

evaluate these available funding opportunities to support LCRI
implementation and full service line replacement.
The BIL appropriated $30.7 billion in supplemental DWSRF funding
and reemphasized the importance of LSLR under the DWSRF program by
including $15 billion specifically appropriated for ``lead service line
replacement projects and associated activities directly connected to
the identification, planning, design, and replacement of lead service
lines.'' The dedicated LSLR appropriation and the General Supplemental
appropriation under the BIL as well as annual base appropriations for
the DWSRF can pay for LSLR and related activities. Full service line
replacement is an eligible cost under the DWSRF regardless of the
ownership of the property on which the service line is located. The BIL
requires that States provide 49 percent of their LSLR and General
Supplemental capitalization grant amounts as additional subsidization
in the form of principal forgiveness and/or grants to disadvantaged
communities, as defined under SDWA 1452(d)(3). This 49 percent
additional subsidization requirement in the BIL is greater than the
additional subsidization requirement under SDWA section 1452(d)(2) for
annual base DWSRF appropriations, and as such, the BIL makes available
additional DWSRF funding for LSLR and associated activities that does
not need to be repaid.
Corrosion control planning and design as well as associated capital
infrastructure projects are also eligible for DWSRF funding under the
DWSRF General Supplemental appropriation under the BIL as well as the
DWSRF annual base appropriations. However, corrosion control treatment
is not an eligible activity for DWSRF funding from the $15 billion
specifically appropriated in BIL for LSLR and associated activities.
States may use set-aside funds to assist water systems' development of
corrosion control strategies and LSL inventories and replacement plans.
In addition, States can also use DWSRF set-aside funds to provide
operators with ongoing educational opportunities, such as how to
perform lead monitoring and testing (USEPA, 2019a). Water systems are
encouraged to contact their State's DWSRF program to learn about
project eligibilities and requirements.
The WIIN Act established three drinking water grant programs that
are available to support activities to reduce lead exposures in
drinking water. The Reducing Lead in Drinking Water grant program
awards funding for the reduction of lead in drinking water in
disadvantaged communities as defined under SDWA section 1452(d)(3).
This grant program focuses on two priority areas: (1) reduction of lead
exposures in the nation's drinking water systems through water
infrastructure and treatment improvements; and (2) reduction of
children's exposure to lead in drinking water at schools and child care
facilities (USEPA, 2023c). The Voluntary School and Child Care Lead
Testing and Reduction grant program awards funding to States,
territories, and Tribes to assist local and Tribal educational agencies
in voluntary testing and remediation for lead contamination in drinking
water at schools and child care facilities (USEPA and USHHS, 2023). The
Small, Underserved, and Disadvantaged Communities grant program awards
funding to States, territories, and Tribes to assist certain public
water systems in meeting SDWA requirements, including the lead and
copper National Primary Drinking Water Regulations (USEPA, 2021f).
EPA administers the WIFIA program, a Federal credit program, to
accelerate investment in the nation's water infrastructure by providing
long-term, low-cost supplemental loans for regionally and nationally
significant projects, including those eligible for funding through
DWSRFs (USEPA, 2023d). Similar to DWSRF, WIFIA also provides financial
assistance for full service line replacement unless a portion has
already been replaced or is being concurrently replaced with another
funding source.
EPA also provides water technical assistance (WaterTA) to support
communities in identifying lead sources, developing removal and
remediation plans, and applying for water infrastructure funding. EPA
collaborates with States, Tribes, territories, community partners, and
other key stakeholders to implement WaterTA efforts. For example, the
administration and expenses funds appropriated under BIL enabled the
establishment of numerous Environmental Finance Centers (EFCs) that
help underserved communities that have historically struggled to access
Federal funding, such as DWSRF, receive the support they need to access
resources for water infrastructure improvements, including LSLR.
In January 2023, EPA announced the ``Lead Service Line Replacement
Accelerators'' initiative (USEPA, 2023e). This major initiative will
provide targeted technical assistance services to help underserved
communities access funds from the BIL and replace lead pipes that pose
risks to the health of children and families. The initiative involves
the U.S. Department of Labor and four States (i.e., Connecticut,
Pennsylvania, New Jersey, and Wisconsin), and the initiative will work
with 40 communities across those States in 2023. The Accelerators
initiative will support these States in strategically deploying funding
from the BIL for LSLR while developing best practices that can serve as
a roadmap for the rest of the country. EPA will provide hands-on
support to guide communities through the process of LSLR, including
support in developing LSLR plans, conducting inventories to identify
lead pipes, increasing community outreach and education efforts, and
supporting applications for Federal funding. For additional information
on EPA funding, see: <a href="https://www.epa.gov/ground-water-and-drinking-water/funding-lead-service-line-replacement">https://www.epa.gov/ground-water-and-drinking-water/funding-lead-service-line-replacement</a>. For additional information
on technical assistance, see: <a href="https://www.epa.gov/water-infrastructure/water-technical-assistance-waterta">https://www.epa.gov/water-infrastructure/water-technical-assistance-waterta</a>.
In addition to the EPA-administered funding for service line
replacement and other lead reduction actions, other Federal programs
outside of EPA offer significant opportunities to further support these
actions. Examples include Federal and State funds from the American
Rescue Plan (ARP), Community Development Block Grant (CDBG) programs
through the U.S. Department of Housing and Urban Development (HUD),
Rural Development through the U.S. Department of Agriculture (USDA),
and the Public Works Program through the U.S. Department of Commerce
Economic Development Administration (EDA).
ARP funds are eligible to fund LSLR as well as replacement of
internal plumbing and faucets and fixtures in schools and daycare
centers. Recipients of ARP funds budgeted over $345 million for lead
remediation projects as of September 30, 2022 (The White House, 2023).
For example, Washington, DC, budgeted $30 million to increase funding
available to assist residents in replacing lead water service lines to
their homes. Additionally, Buffalo, New York, will use $10 million to
expand its existing program to remove LSLs in 1,000 additional homes
(Department of the Treasury, n.d.).
HUD CDBG programs support community development through activities
that address needs, such as infrastructure, economic development
projects, public facilities installation, and community centers (USHUD,
2020).

[[Page 84905]]

In 2017, North Providence, Rhode Island, utilized CDBG funding from HUD
to replace customer-owned LSLs (USEPA, 2023p). HUD's Healthy Homes
Production grant program and Healthy Homes Supplements to HUD's Lead
Hazard Reduction grant programs are available to address a wide range
of housing-related hazards including LSLR (USHUD, 2023).
USDA Rural Development provides a variety of grant and loan
programs to rural communities, organizations, businesses, and
individuals to finance infrastructure repair and replacement, including
LSLR (USEPA, 2020a).
The EDA Public Works Program supports physical infrastructure
improvements in economically distressed communities (USEPA, 2020a).
With the creation of the Low-Income Household Water Assistance Program
(LIHWAP) in 2021, States have an additional funding source to assist
low-income households with water and wastewater bills and reduce the
financial burden of water systems. In 2021, over $1.1 billion was
appropriated for LIHWAP.\7\
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\7\ Consolidated Appropriations Act, 2021 (Pub. L. 116-260),
Div. H, Sec. 533, and American Rescue Plan Act (Pub. L. 117-2), Sec.
2912.
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States are using the available Federal funding sources as well as
providing their own funding to support LSLR. As of February 2023,
Illinois EPA has provided almost $89 million for LSLR (IEPA, 2023).
Illinois EPA's DWSRF is providing funding to numerous systems' LSLR
projects, including over $4 million in funding for the City of Sycamore
and $3.9 million for the City of Batavia (IEPA, 2023). Other States are
also providing funding for LSLR. New York's Lead Service Line
Replacement Program received $20 million in State funding in 2017 and
an additional $10 million in 2019 for communities meeting specific
eligibility characteristics, including income, measured blood lead
levels, and age of homes (NYDOH, 2021). The State of Minnesota approved
$240 million for replacing LSLs, mapping and inventory activities, and
informing residents about the benefits of LSLR. The State of Minnesota
established an LSLR grant program, where the awarded grants must cover
100 percent of the cost of replacing the customer's portion of an LSL
and prioritize replacing LSLs that are an imminent threat to public
health and safety, areas with children, lower-income residents, and
where replacements will provide the most efficient use of the grant
funding (such as in coordination with main replacement) (State of
Minnesota, 2023). The funding will be available in 2024 until June 30,
2033, which corresponds to the year the State has set as their official
goal for replacing all LSLs (State of Minnesota, 2023). Regional
authorities, like the Massachusetts Water Resources Authority (MWRA),
are also providing funding to support LSLR. MWRA provided $100 million
in loan funds for LSL investigation and replacement projects in their
metropolitan Boston communities (MWRA, 2023).
EPA developed ``Strategies to Achieve Full Lead Service Line
Replacement,'' which is a guidance document that discusses funding
sources including additional ways systems have financed full service
line replacement (USEPA, 2019a). For example, the City of Green Bay,
WI, used funding from a stadium tax to fund customer-side LSLR (USEPA,
2019a). EPA also developed ``Funding and Technical Resources for Lead
Service Line Replacement in Small and Disadvantaged Communities,''
which is a guide to help small and disadvantaged communities identify
potential Federal funding sources and technical assistance for LSLR
(USEPA, 2020a).

H. Lead Exposure and Environmental Justice, Equity, and Federal Civil
Rights

Environmental Justice
Stakeholder feedback and EPA's environmental justice analysis
informed the Agency's understanding of how the proposed LCRI could
benefit communities with environmental justice concerns. As described
in section IV.C., EPA developed these proposed revisions after engaging
with community stakeholders in cities with concerns about lead in
drinking water during the LCRR review by holding two public listening
sessions on the topic of environmental justice to support the proposed
LCRI rulemaking. EPA also prepared an environmental justice analysis
for this proposed rule to inform EPA's understanding of how the
proposed LCRI could impact communities with environmental justice
concerns (USEPA, 2023f). EPA is proposing requirements that would
achieve more equitable outcomes, especially in how service line
replacement programs are planned and implemented. EPA is proposing
requirements that would help to ensure that communication about the
replacement program and the risks of lead in drinking water are more
accessible to all consumers including individuals with limited English
proficiency. Specific proposed requirements, and their anticipated
impacts on equity, are described in full in section V. For example, EPA
is proposing a requirement for water systems to make their service line
replacement plans accessible and publicly available to inform the
public of how full service line replacement will be prioritized (see
section V.B.7.). Section V.B.5. includes a discussion on proposed
requirements as incentives to overcome access issues and section V.5.9.
describes environmental justice concerns and how the proposed rule may
impact those concerns. In addition, as discussed in the previous
section, Federal funds are available to support equity including BIL
funds that require that States provide 49 percent of their LSLR and
General Supplemental capitalization grant amounts as additional
subsidization in the form of principal forgiveness and/or grants to
disadvantaged communities, as defined under SDWA 1452(d)(3) (see
section IV.G.).
Applicability of Federal Civil Rights Laws
EPA ensures compliance with Federal civil rights laws that together
prohibit discrimination on the bases of race, color, national origin
(including limited-English proficiency), disability, sex and age,
respectively Title VI of the Civil Rights Act of 1964 (Title VI),
Section 504 of the Rehabilitation Act of 1973 (Section 504), Title IX
of the Education Amendments of 1972 (Title IX), Section 13 of the
Federal Water Pollution Control Act Amendments of 1972 (Section 13) and
the Age Discrimination Act of 1975. EPA's nondiscrimination regulations
at 40 CFR parts 5 and 7 implement these Federal civil rights statutes
and contain important civil rights baseline elements that are legally
required for applicants and recipients of EPA financial assistance.
All applicants for and recipients of EPA financial assistance have
an affirmative obligation to comply with these laws, as do any
subrecipients of the primary recipient, and any successor, assignee, or
transferee of a recipient, but excluding the ultimate beneficiary of
the assistance.
The civil rights laws prohibit any program or activity receiving
EPA financial assistance from discrimination based on race, color,
national origin (including limited-English proficiency), disability,
sex, and age. Accordingly, water systems must take reasonable steps to
provide meaningful access to their programs and activities to
individuals with limited-English proficiency. Recipients must provide
individuals with disabilities an equal

[[Page 84906]]

opportunity to participate in or benefit from their programs and
activities.
When developing service line replacement plans, water systems that
are recipients or subrecipients of EPA financial assistance should
ensure compliance with Federal civil rights laws. As a best practice,
one component of such a plan may be the analysis of the demographic
data that recipients of EPA financial assistance are required to
collect under 40 CFR 7.85(a). EPA encourages water systems to engage
with local community-based organizations and community members about
the service line replacement process and in the development of the
service line replacement plan. EPA also encourages States to consider
if any State law or regulation may create barriers that could lead to
challenges for water systems to meet their obligations under Federal
civil rights laws. To support this effort, EPA is proposing a special
primacy requirement for States to identify any potential barriers to
full service line replacement, which is discussed further in section
VII.C.

V. Proposed Revisions to 40 CFR Subpart I Control of Lead and Copper

A. Regulatory Approach

Section 1412(b)(7)(A) of SDWA authorizes the EPA Administrator ``to
promulgate a national primary drinking water regulation that requires
the use of a treatment technique in lieu of establishing an MCL, if the
Administrator makes a finding that it is not economically or
technologically feasible to ascertain the level of the contaminant''
(42 U.S.C. 300g-1(b)(7)(A)). In the 1991 LCR, EPA evaluated the best
information available at the time consistent with the statutory
standard and determined that lead and copper met the criteria for
establishing a treatment technique rule. For the proposed LCRI, EPA is
finding, as it did in 1991, that an MCL for lead is not feasible to
ascertain the level of the contaminant within the meaning of the Act
and in a way that would achieve the basic purposes of the statute.
Specifically, as described in more detail below, EPA considered whether
the level of lead and copper can be ascertained at the tap, whether it
was possible to determine single national numerical standards for lead
and copper at the tap that is reflective of the effectiveness of
treatment applied by water systems, and whether the fact that lead and
copper are both present in water systems' distribution system and
building premise plumbing, make it infeasible for EPA to establish MCLs
for lead and copper. In making this finding, EPA conducted a new
analysis of the issue by re-evaluating the information and data and
analyses underlying EPA's conclusion in the 1991 LCR and evaluating the
new information and data available since LCR was promulgated.
The primary rationale for promulgating the LCR as a treatment
technique rule was due to the nature of lead and copper contamination.
As EPA described in 1991, and is still accurate today, lead and copper
do not generally occur in source water, but instead are introduced in
drinking water by the corrosive action of water in contact with
plumbing materials containing lead and copper. These sources of lead
and copper were and continue to be present in both the water system's
distribution system and in plumbing materials in homes. In 1991, EPA
explained that lead and copper levels at the tap can be highly variable
``due to many factors including the amount of lead and copper in the
resident's plumbing or in the PWS's distribution system . . .
temperature, age of plumbing components, chemical and physical
characteristics of distributed water, and the length of time water is
in contact with those materials'' (56 FR 26473, USEPA, 1991). EPA noted
that while it is feasible to accurately measure the level of lead or
copper in an individual sample, the inherent variability across sites
and systems makes it ``technologically infeasible to ascertain whether
the lead or copper level at a tap at a single point in time represents
effective application of the best available treatment technology'' (53
FR 31527, USEPA, 1988). EPA discussed how if EPA were to select an MCL,
it must be ``as close as feasible'' to the MCLG in accordance with the
statutory standard. EPA analyzed lead and copper tap sampling data to
determine if there is a ``precise level [of lead] at the tap'' that
could be feasibly met by large water systems if they were to apply
treatments representing best available technology to the water systems
themselves (56 FR 26473, USEPA, 1991). EPA found that even when
minimizing some of the sources of variability (e.g., the time the water
is in contact with the plumbing materials, age and type of plumbing
material), lead and copper levels still varied considerably. Lead and
copper levels varied at the same system both before and after the
application of corrosion control treatment, between different systems,
and between individual homes within the same system (56 FR 26473-26475,
USEPA, 1991). EPA concluded that because of the sources of variability
described above, there is no precise level that would be generally
considered ``feasible'' based upon application of best available
treatment in all water systems and further found that the level that is
as close as ``feasible'' to an MCLG would vary in systems throughout
the country based on the sources of lead and copper, the corrosivity of
the water, and how the water chemistry responds to corrosion control
treatment (56 FR 26473, USEPA, 1991).
Second, EPA explained an additional challenge for establishing MCLs
for lead and copper was because much of the lead and copper sources are
privately owned and/or are outside of the control of the public water
system. At the time, EPA received comments stating that by ``only
establish[ing] MCLs for lead and copper for the water as it leaves the
control of the public water system'' (56 FR 26472), and therefore
monitoring for compliance in the distribution system, EPA could reduce
some of the variability associated with lead and copper levels and
address the problem of water system responsibility for conditions
outside of their control. The Agency determined that setting an MCL for
lead and copper at the point the water leaves the control of the public
water system would be inconsistent with the SDWA definition of an MCL
as ``the maximum level allowed of a contaminant in water which is
delivered to any user of a public water system''. Specifically, EPA
reasoned that MCLs for lead and copper would have to be assessed with
monitoring at customers' taps to accurately represent the level of the
contaminants in drinking water delivered to the user, noting that,
``EPA has established monitoring requirements for inorganic and organic
contaminants that require monitoring in the distribution system because
this is easier and provides just as accurate an assessment of tap
levels as tap sampling itself'' (56 FR 26478, USEPA, 1991). EPA
determined that monitoring for lead and copper in the distribution
system for compliance with MCLs ``would not adequately protect the
public from lead and copper introduced by the interaction of corrosive
water delivered by the public water system with lead and copper-bearing
materials in the homeowners' plumbing'' (56 FR 26472-26473, USEPA,
1991). Despite the fact that lead and copper sources may be outside the
control of the water system, EPA determined that ``public water systems
can affect, at least to some degree, water tap lead and copper levels
through adjustment of the corrosivity of water delivered by the water
system'' (56 FR 26473, USEPA, 1991). However, as explained in the

[[Page 84907]]

1991 rulemaking, due to the factors described above (e.g., variability
of lead and copper in drinking water, treatment effectiveness, and
sources of lead and copper), water systems can affect drinking water
corrosivity, but not in a way that is technically feasible to set MCLs.
Third, EPA reasoned in the 1991 rulemaking that the definition of a
public water system under SDWA precludes the Agency from promulgating a
``regulation that holds a [public water system] liable for conditions
that are beyond its control'' (56 FR 26476, USEPA, 1991). EPA posited
that an MCL would not be considered ``feasible'' if a significant
number of water systems would be in noncompliance due to conditions
outside of their control. EPA contemplated an alternative approach of
establishing MCLs that would meet the statutory standard for an MCL in
SDWA section 1412(b)(4)(B) and 1412(b)(4)(D)--``as close to the maximum
contaminant level goal as is feasible''--i.e., ``feasible with the use
of the best available technology, treatment techniques and other means
which the Administrator finds, after examination for efficacy under
field conditions and not solely under laboratory conditions, are
available (taking cost into consideration)''. The resulting MCLs would
need to be high enough to enable most systems to meet them after
installing treatment (accounting for the variability of lead and copper
levels that would persist after treatment installation, given the
sources of lead and copper). However, EPA found that such an approach
would lead ``to unnecessarily high exposures of significant segments of
the population'' and noted that systems below this higher MCL ``would
not be required to install any treatment to be in compliance'' (56 FR
26477, USEPA, 1991). Therefore, EPA concluded that such an approach
would be inconsistent with the objective of the statute to prevent
``known or anticipated adverse effects on the health of persons to the
extent feasible'' (SDWA 1412 (b)(7)(A)).
Considering the above facts, analyses, and statutory requirements,
EPA concluded that it was not feasible to set MCLs for lead and copper
and promulgated a rule comprised of four treatment techniques:
corrosion control treatment, source water treatment, lead service line
replacement, and public education. As described in section I.C. of this
preamble, EPA introduced action levels for lead and copper to implement
the treatment technique requirements in the rule. The action levels are
compared to the 90th percentile of lead and copper samples collected
from consumer taps to determine if the water system must take actions
under the rule. In 1991, EPA explained how the action levels are not
MCLs, and they do not function as MCLs. For more information about
action levels, including the lead action level EPA is proposing for the
LCRI and EPA's determination about why and action level was not an MCL
under the LCR and would still not be an MCL under the proposed LCRI,
see section V.E.2. of this document.
EPA's 1991 decision to promulgate a treatment technique rule for
lead was challenged and upheld by the D.C. Circuit Court of Appeals
(American Water Works Association v. EPA (``AWWA''), 40 F.3d 1266,
1270-71 (D.C. Cir. 1994)). Because the Court agreed with EPA's
analysis, described above, that it is not feasible to ascertain the
level of lead in drinking water, the Court upheld EPA's decision not to
implement an MCL for lead (AWWA, F.3d 1266, 1270-71).
For the proposed LCRI, EPA has re-evaluated whether a treatment
technique rule in lieu of an MCL is consistent with the statute. As
part of the Agency's analysis, EPA re-evaluated the information
considered and conclusions made in promulgating the LCR in 1991, in
addition to the best information and data available in more than thirty
years since the LCR was promulgated, including from stakeholder
feedback received during the LCRR review. Based on the analysis being
conducted for the proposed LCRI, EPA is proposing to determine that
information and factors consistent with the Act that cause lead and
copper variation identified in the 1991 LCR and supported in the LCRR
continue to apply today. Therefore, it is not feasible to establish
MCLs for lead and copper consistent with the SDWA.
New information available since the 1991 LCR continues to show that
the variability of lead and copper levels make it infeasible to
ascertain the level of the contaminant and does not meet the statutory
standard for an MCL under SDWA. Several reasons contribute to EPA's
determination on lead and copper variation supporting the use of a
treatment technique. First, as noted in the LCR, ``lead release can be
unpredictable over time and across households, can originate from many
sources owned by the water system and the customer, can vary based on
the sample technique used, and can be affected by customer water use
habits'' (53 FR 31527, USEPA, 1988). Studies continue to show that the
levels of lead and copper measured at the tap after treatment is
variable due to several factors including, but not limited to, the
amount of lead in any individual site's plumbing, the age of plumbing
components, the physical and chemical characteristics of the water, the
length of time water is in contact with material, and consumer water
use patterns (Triantafyllidou et al., 2021). Studies show that lead
levels can widely vary at a single site depending on the sampling
protocol (Del Toral et al., 2013; Lytle et al., 2019; Lytle et al.,
2021; Masters et al., 2021; Triantafyllidou et al., 2015). For example,
Del Toral et al. (2013) showed that there was significant variability
in lead concentrations from water samples collected at the same site as
well as among different LSL sites across Chicago, Illinois. EPA's
analysis of 2019 State of Michigan Lead Tap Monitoring Data as part of
the LCRR (see docket item no. EPA-HQ-OW-2017-0300-1617) also
demonstrated variability among collected water samples grouped by
combinations of LSL status, CCT status, and liter sampled (USEPA,
2020c, Exhibit F-4). Even when using the same sampling protocol,
variation in lead at a single site can still occur due to water use
patterns and highly variable release of particulate lead (Clark et al.,
2014; Masters et al., 2016; Xie and Giammar, 2011).
For the proposed LCRI, EPA analyzed lead data from the dataset
collected for the Six-Year Review 4 (2012 to 2019) for systems with
different characteristics (e.g., CCT and LSL status) to further
evaluate how lead and copper levels at the tap can vary. Six-Year
Review 4 data were voluntarily provided to EPA from 46 States,
Washington, DC, and 10 Tribal programs and territories and includes the
LCR compliance data reported to the State. EPA used Safe Drinking Water
Information System Federal Reporting Services (SDWIS/FED) (2012 to
2020) data and information on LSL status to select a subset of 7,161
systems with identified CCT and LSL status (USEPA, 2023b). Similar to
an analysis conducted for the LCR, EPA evaluated the magnitude of
difference between two points in the distribution as a measure of
variability (56 FR 26474, USEPA, 1991). Because the 90th percentile is
used to require actions under the LCR, EPA used a ratio of the 90th
percentile (P90) and the 50th percentile or median (P50) for lead and
copper values for each system in each year of data in the dataset (2012
to 2019). For example, if there are 100 samples, the 50th percentile is
the 50th highest concentration and the 90th percentile is the 90th
highest concentration. If the P90/P50 ratio is

[[Page 84908]]

close to one, it means that the values are similar and there is low
variability among the measured lead levels at that system in a given
year. Prior to calculating percentiles, EPA assigned a numerical value
for non-detects. The true value of the non-detect could be anywhere
between zero and the minimum reporting level (MRL) reported with a
sample result. As a conservative estimate, EPA substituted one-half of
the reported MRL associated with each sample result. For sample results
without a reported MRL value, EPA substituted one-half of the most
commonly reported MRL for lead or copper in the State the system is
located in, or nationally (0.005 mg/L for lead and 0.01 mg/L for
copper) if State-level MRL data was not available. This approach is
commonly used for evaluating Six-Year Review data (USEPA, 2016b). EPA
also applied full MRL substitution to show the range of possible
results. The results in Exhibit 2 show the P90/P50 ratios calculated
for selected systems representing different sizes, CCT, and LSL status.
Exhibit 3 shows the results for copper. The results show high
variability across systems as well as instances where a system has low
variability in samples for one year and high variability in another.
Systems with CCT and systems without LSLs also experience variability
in lead levels both within a single sample collection year and between
collection years. Higher ratios (e.g., >10) in Exhibits 2 and 3 are
often due to the P50 value being a non-detectable concentration In
other words, these systems had some tap samples with high levels of
lead or copper and others where lead or copper was not detected.
Additional details and full results for all systems analyzed, including
results using full MRL substitutions, are found in the data file ``Lead
and Copper Variability Analysis'' in docket no. EPA-HQ-OW-2022-0801.
[GRAPHIC] [TIFF OMITTED] TP06DE23.014

[[Page 84909]]

[GRAPHIC] [TIFF OMITTED] TP06DE23.015

Second, the conditions of plumbing materials also continue to vary
from water system to water system, and from site to site within a water
system, such that lead in drinking water continues to be subject to
high levels of variability. Studies have shown that LSLs are the
predominant contributor of lead in drinking water where they are
present. A study published by the AWWA Research Foundation (2008) found
that LSLs contribute an estimated 50 to 70 percent of the mass of lead
at the tap for sites served by LSLs (Sandvig et al., 2008). Another
study found that removal of LSLs resulted in an average reduction of
lead content at the tap by 86 percent (Lytle et al., 2019). However,
while removal of LSLs is critical to reducing lead in drinking water,
premise plumbing materials also continue to be a source of lead in
drinking water (Elfland, 2010; Kimbrough, 2007; Rockey et al., 2021).
In addition, premise plumbing materials can be a source of particulate
lead. For example, brass particles and lead solder particles were
identified as the cause of severe tap water contaminations during three
field investigations in North Carolina and Washington, DC
(Triantafyllidou and Edwards, 2012). The Agency notes that even where
systems remove all LSLs, it will not sufficiently allow for the
discontinuation of CCT because of the presence of other lead and copper
sources that will remain in the plumbing of consumers' homes and other
buildings (USEPA, 2020c). Accordingly, EPA is aware that systems
without LSLs can exceed the lead action level, for example, due to the
corrosion of premise plumbing containing lead. Under the LCRR, EPA
estimated between 2.3 and 4.7 percent of CWSs without LSLs will exceed
the current lead action level of 0.015 mg/L (USEPA, 2023b, Chapter 3,
Exhibit 3-25). Thus, the factors that cause lead and copper variation
will continue to exist.
Third, despite changes to the allowable amount of lead in ``lead
free'' plumbing, many older buildings can still be a source of lead.
SDWA section 1417 prohibits the use of any pipe, any pipe or plumbing
fitting or fixture, solder, or flux in the installation or repair of
any public water systems or in plumbing in a residential or
nonresidential facility that provides water for human consumption that
is not ``lead free'' as defined in section 1417(d). The 2011 Reduction
of Lead in Drinking Water Act revised the definition of ``lead free''
in SDWA section 1417(d) from eight percent to a weighted average of
0.25 percent,\8\ lowering the amount of lead that may be in plumbing
materials used in repairs or new installations starting in 2014. The
Lead Free Rule (85 FR 54236, USEPA, 2020d) requires third-party
certification for new plumbing products as of September 1, 2023.
However, SDWA section 1417 does not require anyone to replace
previously installed plumbing materials that are not ``lead free'' as
currently defined, and many buildings in the U.S. were constructed
prior to 2014. Further, even products that meet the new definition of
``lead free'' may contain trace amounts of lead that can leach into
drinking water (42 U.S.C. 300g-6(d)(1)). Therefore, premise plumbing in
these buildings will continue to be a source of lead in drinking water.
As illustrated both in peer-reviewed studies and through reported
compliance data, lead levels vary at single sites over time, between
sites within a system, and between systems, both for systems with and
without LSLs and CCT.
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\8\ The term ``lead free'' provided here is defined under SDWA
section 1417(d) as follows: ``[T]he term `lead free' means--(A) not
containing more than 0.2 percent lead when used with respect to
solder and flux; and (B) not more than a weighted average of 0.25
percent lead when used with respect to the wetted surfaces of pipes,
pipe fittings, plumbing fittings, and fixtures.''
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EPA heard from stakeholders that the Agency's reasons for not
setting an MCL for lead are inconsistent, stating that EPA's primary
rationale is based on not holding water systems responsible for sources
of lead not owned by the water system while including provisions in the
LCRR for LSLs that apply regardless of water system ownership. This
argument misconstrues the comprehensive set of reasons for EPA's
decision to not set an MCL for lead. In deciding whether to set an MCL
for a particular contaminant or set a treatment technique rule, the
primary focus of the statutory analysis is not on who is
``responsible'' for lead in drinking water, but whether it is feasible
to ascertain the level of lead in drinking water. As described above,
the variability of lead and copper levels make it ``technologically
infeasible to ascertain whether the lead or copper level at a tap at a
single point in time represents effective application of the

[[Page 84910]]

best available treatment technology'' (53 FR 31527, USEPA, 1988). While
premise plumbing is a contributor to lead and copper at the tap, EPA
found, and continues to find, that the quality of water delivered to
customers can be controlled by systems and that ``water systems can
affect, at least to some degree, water tap lead and copper levels
through adjustment of the corrosivity of water delivered by the
system'' (56 FR 26473, USEPA, 1991). For example, studies indicate that
CCT can reduce drinking water lead levels at the tap (Cardew, 2009;
Hayes et al., 2008; Tully et al., 2019).
In addition to the above points, stakeholders have claimed that EPA
has established MCLs for other drinking water contaminants, such as
disinfection byproducts (71 FR 388, USEPA, 2006), and stated that such
contaminants are similarly prone to sampling variability. However, the
preamble for the Stage 2 Disinfectants and Disinfection Byproducts Rule
does not suggest that disinfection byproduct sampling is subject to the
same level of sampling variability as lead sampling or that
disinfection byproducts are as affected by sampling variability that it
impacts the ability of water systems to accurately ascertain
disinfection byproduct contamination from water samples (71 FR 388,
394, USEPA, 2006). The variability in lead and copper materials from
site to site is one difference between the lead and copper and the
disinfection byproduct rules. While both rules require systems to
evaluate water quality within the distribution system, due to the
reasons stated above, the LCR also requires sampling at consumer taps,
which is variable across sites. Put simply, there is no indication that
the level of purported sampling ``variability'' associated with
disinfection byproducts can be reasonably compared to that of lead
contamination in drinking water.
Another critical distinction between the lead and copper rules and
the disinfection byproduct rules is that, unlike for lead, water
systems disinfecting the water supply are the source of disinfection
byproducts. Water systems introduce disinfectants, such as chlorine and
chloramine, into the drinking water supply (71 FR 394, USEPA, 2006).
These disinfectants interact with organic and inorganic material in
source waters to form disinfection byproducts. Water systems have the
ability to control and account for the formation of disinfection
byproducts, such as through source water treatment. On the other hand,
lead is rarely found in source water (86 FR 4231, USEPA, 2021a) and is
instead introduced into the drinking water supply through corrosion in
lead pipes and fixtures, sometimes from lead pipes and fixtures outside
the direct control of the water system. As such, there is no
inconsistency between regulating disinfection byproducts through an MCL
while finding that a treatment technique is necessary for lead.
Considering the above information and analysis, EPA is determining
that the same conditions that prompted EPA to promulgate a treatment
technique rule for lead and copper in 1991, still exist today and
justify continued use of a treatment technique rule for regulating lead
and copper. This includes the nature of lead contamination, where much
of the lead in drinking water continues to originate in the
distribution system and from sources outside the control of water
systems, the condition of water systems' plumbing and distribution
system varying from system to system, and the variability of lead and
copper levels at the tap. In addition to finding that it is not
feasible to set an MCL for lead and copper at the tap, EPA also notes
the benefit of a treatment technique. EPA can set requirements that
compel the system to take various actions to reduce lead in drinking
water, while an MCL would not compel action until, and unless, the MCL
is exceeded (USEPA, 2020b). EPA is not authorized to require a specific
treatment when promulgating an MCL (see SDWA sections 1412(b)(4)(E) and
1412(b)(7)(A)).
EPA has reasoned that the conditions that led the Agency to make
the findings necessary to promulgate a treatment technique rule for
lead and copper in 1991 still apply and are supported by an evaluation
of the best information and data available since the LCR was
promulgated. For these reasons, the Agency is proposing to continue to
regulate lead and copper through four treatment techniques: (1) service
line replacement, (2) CCT, (3) public education, and (4) source water
treatment.

B. Service Line Replacement

1. Mandatory Full Service Line Replacement and SDWA Requirements
This proposal marks a fundamental improvement in the lead service
line replacement program, which reflects EPA's experience in
implementing the lead rule over 30 years, new evidence and data, and is
supported by the extraordinary commitment of funds for this program
under the BIL. EPA is proposing mandatory full service line replacement
of all LSLs and GRR service lines under a water system's control. In
the LCRR review, EPA recognized the ``urgency of fully removing all
lead service lines'' and the need to consider an LSLR mandate in an
improved regulation (i.e., the LCRI) as well as through non-regulatory
actions (86 FR 71577, USEPA, 2021b). In the LCRR review, EPA noted that
under the LCRR, millions of LSLs would be left in place and would
result in ``generations of Americans being at risk of significant lead
exposure through their drinking water'' (86 FR 71577 USEPA, 2021b).
The LCRR requires water systems to replace lead and GRR service
lines after exceeding the lead action level or the LCRR-established
lead trigger level. Systems that exceed the lead action level and serve
more than 10,000 people must fully replace three percent of lead, GRR,
and unknown service lines per year on a two-year rolling basis for at
least two years. The State must require systems to replace LSLs on a
shorter schedule if determined to be feasible. A system may cease
mandatory LSLR on the date the system's 90th percentile lead level has
been calculated to be at or below the lead action level during each of
the four consecutive six-month tap sampling monitoring periods. Systems
that exceed the lead trigger level, but stay at or below the lead
action level, and serve more than 10,000 people must consult with the
State on replacement goals and implement a goal-based LSLR program for
two consecutive one-year monitoring periods.
Any small CWS (serving 10,000 or fewer people) or NTNCWS that
exceeds the lead action level and selects lead service line replacement
as its compliance option under the LCRR small system flexibilities must
implement a full lead service line replacement program on a schedule
approved by the State that does not exceed 15 years. The LCRR also
requires systems, regardless of their 90th percentile lead level, to
replace the system-owned portion of an LSL when customers choose to
replace their portion of the line; full LSLR is required in such cases
because of the risks associated with partial LSLR.
EPA projected that, under the LCRR, only 854,000 to 1.3 million
LSLs would be replaced over the 35-year period of analysis for the
rulemaking (USEPA, 2023b, Exhibit 4-135). Under this projection,
millions of LSLs that generally account for 50 to 75 percent of lead
contamination at the drinking water tap (Sandvig et al., 2008) would
remain in active use in systems both with and without OCCT. Removing
this significant source of lead exposure for millions of people is
vital to protect

[[Page 84911]]

public health. During the proposed LCRI external engagements, many
stakeholders voiced strong support for mandatory replacement of all the
nation's LSLs through the LCRI, regardless of lead levels or CCT status
(USEPA, 2023h; USEPA, 2023i; USEPA, 2023j). Some stakeholders did not
support a service line replacement mandate by a deadline, citing
competing demands for water systems (USEPA, 2023j).
The proposed LCRI lead service line replacement approach is built
on the experience of systems that are working proactively to replace
LSLs, the significant funding available for service line replacement
(including $15 billion for identifying and replacing LSLs from BIL),
and the four States (Illinois, Michigan, New Jersey, and Rhode Island)
that currently require systems to replace LSLs by specific deadlines.
These proactive measures alone cannot achieve the goal of replacing 100
percent of lead and GRR service lines. A nationwide service line
replacement mandate would ensure coverage for customers served by lead
and GRR service lines in States that do not require mandatory
replacement or where systems are not proactively replacing lead and GRR
service lines. Mandatory service line replacement provides additional
public health protection beyond the benefits of CCT, source water
treatment, and public education alone.
Lead Exposures From Drinking Water
Where LSLs and GRR service lines remain in place, they continue to
present risks of lead exposure, especially from particulate lead
releases. As discussed in section V.B.2. of this document, EPA
determined that mandatory service line replacement is feasible, and a
requirement that systems replace all LSLs and GRR service lines over a
10-year period would ensure that the proposed LCRI ``prevents known or
anticipated adverse effects on the health of persons to the extent
feasible'' (SDWA 1412(b)(7)(A)). The LCR and LCRR relied on replacing
LSLs initiated by a series of process steps following periodic tap
sampling results. Over the 30 years of implementing the LCR, EPA has
found that the sampling and process steps of that rule created
implementation uncertainties, difficulties, and errors that, in some
cases, resulted in significant lead exposures. Improper implementation
of the sampling and corrosion control treatment process has been the
cause, or one of the primary causes, of significant lead exposures in
multiple water systems. Moreover, disturbances of LSLs can potentially
cause lead particulates to be released into drinking water, causing
higher lead levels at those sites. Although the proposed LCRI includes
risk mitigation requirements for water systems if they disturb the
service line, other utilities or heavy traffic may also disturb the
line (Del Toral et al., 2013; Roy and Edwards, 2019), events which
would be unknown to the water system and not subject to risk mitigation
steps. In addition, particulate lead can be released sporadically
(i.e., not associated with a disturbance), even in systems that have
OCCT and have measured generally low lead levels (Triantafyllidou et
al., 2007). Research has also shown that lead exposure is not fully
eliminated by CCT due to a variety of factors including individual home
and service line characteristics, water quality, water use (including
water stagnation following extended periods without water use),
treatment, infrastructure, and disturbances to service lines (e.g.,
meter installation, road repair, and freezing of the ground that can
have unintended and unpredictable effects), causing lead releases in
the water when LSLs or GRR service lines are present (Del Toral et al.,
2013; Masters et al., 2021; Proctor et al., 2020; Roy and Edwards,
2019; Schock et al., 2014; Triantafyllidou et al., 2007). Examples of
isolated cases of lead poisoning in children have been documented and
attributed to drinking water in communities whose systemwide lead
levels remained below the action level of 0.015 mg/L (Triantafyllidou
et al., 2007; Triantafyllidou and Edwards, 2012).
New Evidence and Data To Support the Feasibility of Mandatory Service
Line Replacement for All Systems
Although the LCR and LCRR required water systems that exceeded the
lead action or trigger levels to conduct LSLR, neither rule required
all systems in the nation with LSLs and GRR service lines to
simultaneously replace these service lines at a rapid rate. By
mandating full service line replacement of all lead and GRR service
lines in the nation separate from tap sampling and monitoring
requirements, the proposed LCRI would better protect public health by
removing a significant source of lead in drinking water (where present)
and further reducing known or anticipated adverse health effects beyond
what is able to be tested due to the sporadic nature of particulate
lead spikes that can make their detection challenging. Furthermore,
there had been a lack of data regarding the number of LSLs and GRR
service lines in systems as well as no direct implementation of a broad
service line replacement mandate in a large geographic region, or State
laws requiring such, to demonstrate the feasibility of this
requirement. New and higher quality evidence and data are available to
assess the feasibility of this proposed requirement more accurately.
EPA has found this evidence and these data indicate that such a
requirement for LSLR is feasible as well as likely technically
possible. For example, four States (Illinois, Michigan, New Jersey, and
Rhode Island) have now required LSLR through State law, where New
Jersey and Rhode Island both require all LSLs and all galvanized
service lines (irrespective of whether there is or was an upstream LSL)
to be replaced in ten years unless granted an extension by the State
(State of New Jersey, 2021; State of Rhode Island, 2023). During the
development of the LCRR, EPA was only aware of individual systems that
had or were proactively conducting service line replacement. However,
the four state service line replacement laws suggest that States expect
such a requirement to be technically possible given hundreds of systems
required to conduct service line replacement simultaneously within and
across these States. EPA notes that these States are estimated to have
approximately one-fifth of the LSLs in the country (1.8 out of 9.2
million estimated LSLs) and have among the most LSLs in the country
(USEPA, 2023k). Specifically, Illinois and Rhode Island are estimated
to have 28 percent and 25 percent of all their service lines requiring
replacement, the two highest proportions in the United States.
Additionally, New Jersey and Michigan have an estimated 14 percent and
11 percent of their lines requiring replacement, both above the
national average of 8 percent (USEPA, 2023k). These laws suggest that
these States anticipate that a broad service line replacement mandate
is technically possible. Michigan and New Jersey have implemented their
service line replacement laws since 2021, providing even more support
that the States' expectations that their replacement requirements are
in fact technically possible. In addition, BIL and other funding is now
available to support service line replacement, a primary driver of the
proposed rule costs. Also, as mentioned in section IV.C. of this
document, several water systems have had implementation challenges
associated with the LCR, including the CCT requirements. NDWAC
recommendations noted the opportunity provided by proactive replacement
of LSLs to protect public health before

[[Page 84912]]

systems experience higher lead levels'' (USEPA, 2016a).
Additionally, new data from the 7th Drinking Water Infrastructure
Needs Survey and Assessment (referred to as ``Needs Survey''), which
was conducted in 2021 and whose results were published in 2023 (USEPA,
2023k), allowed for more precise estimates of the number of lead, GRR,
and unknown service lines in individual systems and nationwide than
were previously available during the development of the LCRR. These
data allowed EPA to better estimate the impacts of a broad and rapid
mandatory service line replacement requirement to ensure such a
requirement meets SDWA standards for a treatment technique. It also
allowed EPA to estimate with more precision the systems eligible for
deferred service line replacement, which EPA is proposing to be
available to systems for which a 10-year replacement deadline is
infeasible. Finally, BIL and other funding is now available to support
service line replacement, which is a primary driver of the rule costs.
For the reasons discussed in this section, mandatory service line
replacement programs initiated by 90th percentile lead levels are now
known not to be sufficient to prevent known or anticipated adverse
health effects from lead exposure in drinking water to the extent
feasible. As discussed above, improper implementation of corrosion
control treatment can result in significant lead exposures and there is
new data and evidence that support EPA's finding in this proposal that
a mandatory service line replacement requirement applicable to all
community water systems is feasible. For more information about EPA's
feasibility assessment of mandatory service line replacement, see
section V.B.2. of this document. For more information about available
funding, see section IV.G. of this document.
2. Feasibility of Proposed Service Line Replacement Requirement and
Deferred Deadlines
The proposed LCRI service line replacement requirements are
consistent with the SDWA requirements for the rule to ``prevent known
or anticipated adverse effects on the health of persons to the extent
feasible'' (SDWA 1412(b)(7)(A)). EPA determined that neither of the
statutory exceptions in SDWA section 1412(b)(5)(A) for establishing a
treatment technique at a level other than the feasible level apply
since the proposed mandatory service line replacement requirement does
not (1) increase concentrations of other (non-LCR) contaminants or (2)
interfere with the efficacy of drinking water treatment techniques or
processes used to comply with other NPDWRs. EPA also determined that
the statutory authorization in SDWA section 1412(b)(6) to establish a
treatment technique that maximizes benefits at a level justified by the
cost does not apply here because the benefits of the proposed LCRI
service line replacement requirements justify the costs (refer to
section VIII. of this document).
EPA finds that a minimum average annual replacement rate of 10
percent, calculated across a rolling three-year period and
corresponding to a 10-year replacement deadline, is feasible as defined
in SDWA section 1412(b)(4)(D) because it is technically possible for
systems of all sizes and affordable relative to large water systems.
EPA estimates that a 10-year replacement deadline is feasible for 96 to
99 percent of CWSs nationwide (USEPA, 2023g). In addition, because EPA
is proposing to retain the requirement that States set a faster rate
where feasible for systems, the proposed mandatory full service line
replacement provision would prevent known or anticipated adverse health
effects of lead ``to the extent feasible'' (SDWA 1412(b)(7)(A)).
Examples of Systems Replacing All LSLs in 10 Years or Less
EPA is aware of several systems of various sizes and LSL prevalence
that have proactively replaced all LSLs in 10 years or less. Some large
systems completed their service line inventory and replacement programs
in less than 10 years. For example, both Tucson, Arizona (City of
Tucson, 2022), and Spokane, Washington (City of Spokane, 2018),
replaced all their LSLs in approximately two years. Although these
systems had a relatively low number of LSLs (<1,000), EPA notes that,
according to projections from Needs Survey responses, this number is
representative of the majority of systems--only approximately 1,700 out
of nearly 50,000 CWSs nationwide (3.5 percent) are expected to have
more than 1,000 LSLs and GRR service lines (USEPA, 2023g). Some smaller
systems were also able to complete their service line inventory and
replacement programs on relatively short timelines. Both Stoughton and
Mayville, Wisconsin, completed their programs in a single year (City of
Stoughton Utilities Committee, 2022).
In the cases of the large systems in Flint, Michigan, and Newark,
New Jersey, these systems were able to complete or nearly complete
their service line replacement programs well ahead of the proposed
LCRI's 10-year deadline. Newark took four years to complete replacement
(City of Newark, n.d.a). As of July 2023 (the date EPA evaluated this
information), Flint had identified and replaced over 97 percent of
LSLs, and the city estimates completing all replacements by 2023, seven
years after the start of the program (City of Flint, n.d.). Notably,
both Newark and Flint received substantial funding and technical
expertise. Newark also passed an ordinance in 2019 that allowed entry
to private property to evaluate service line materials and replace LSLs
(City of Newark, 2019), which likely contributed to faster replacement
rates. Flint, however, was known to have service line material records
in a logistically challenging paper format with unreliable accuracy
(BlueConduit, 2020), which EPA expects slowed their replacement
progress relative to other systems that did not have these
recordkeeping challenges. Nevertheless, Flint is expected to complete
their service line replacement program in less than the proposed ten
years.
Regarding NTNCWSs, Needs Survey responses from 147 NTNCWSs showed
LSLs are rarely used in these systems since 132 of them did not report
any lead, GRR, or unknown service lines (USEPA, 2023g). Of the NTNCWSs
listed in SDWIS, only 12 out of more than 17,000 NTNCWSs have more than
1,000 service connections (USEPA, 2023g); therefore, the overwhelming
majority of NTNCWSs that do have LSLs and GRR service lines are
expected to have relatively few of these service lines requiring
replacement over the proposed 10-year deadline.
While EPA is aware that some systems completed their service line
replacement programs in more than 10 years, EPA does not interpret
these examples as conclusive or dispositive evidence that a 10-year
deadline is infeasible. For example, Madison, Wisconsin, completed its
LSLR program in just over 11 years (Madison Water Utility, 2014), while
Lansing, Michigan completed removal of over 12,000 LSLs in 12 years
(EDF, n.d.a). Additionally, these systems developed their inventories
and replaced LSLs simultaneously in a shorter period of time than
provided under the LCRR and proposed LCRI combined. The LCRR initial
inventory deadline of October 16, 2024, combined with the three-year
period between promulgation of the LCRI and the start of the 10-year
deadline for full service line replacement gives systems more time to
complete the service line inventory and replacement requirements than
either

[[Page 84913]]

the Madison or Lansing program. In addition, substantial funding from
the BIL and other sources have already advanced many systems' efforts
to identify and replace LSLs.
Feasibility of Service Line Replacement Conducted by All Systems
Simultaneously
Stakeholders cited concerns about limited workforce and shortages
of materials and supplies as factors that could impede service line
replacement progress, especially when all systems in a geographic
region are conducting replacement simultaneously (USEPA, 2023m). As
mentioned previously, four States (Illinois, Michigan, New Jersey, and
Rhode Island) are already or soon to be requiring systems to conduct
mandatory service line replacement, which suggests that States expect
that it is feasible for an individual system to replace LSLs, even when
a broad service line replacement mandate is in effect across a large
geographic region. The prevalence of LSLs in these States strengthens
the evidence for the feasibility of widespread service line
replacement, with Illinois, New Jersey, and Michigan all having greater
than 300,000 estimated lead and GRR service lines statewide and Rhode
Island with an estimated 75,700 LSLs (USEPA, 2023k). According to the
estimates from the Needs Survey, Illinois is among the States with the
most lead and GRR service lines in the nation (2nd), while New Jersey
and Michigan are ranked 9th and 11th respectively, and Rhode Island is
ranked 24th (USEPA, 2023k). Based on available inventory information,
an estimated 187 to 331 out of 567 New Jersey systems have at least one
lead or GRR service line and are thus subject to the 10-year deadline
(see ``New Jersey LSLR Analysis.xls'' in EPA-HQ-OW-2022-0801).
Similarly, 415 to 1,028 out of over 1,700 Illinois systems and 222 to
647 out of 1,300 Michigan systems have at least one LSL or GRR service
line, further demonstrating the magnitude of systems that are
simultaneously replacing LSLs and GRR service lines across large
geographic regions (USEPA, 2023g, ``Illinois LSLR Analysis.xls'' and
``Michigan LSLR Analysis.xls'' in EPA-HQ-OW-2022-0801).
Deferred Deadlines for Mandatory Service Line Replacement
One of the goals of EPA's proposed rule is to replace all the
nation's LSLs and GRR service lines as quickly as is feasible. EPA
estimates that a 10-year replacement deadline is feasible for 96 to 99
percent of CWSs nationwide (USEPA, 2023g). For the limited number of
systems for which EPA estimates this deadline is infeasible, EPA is
proposing two eligibility criteria for systems to defer their service
line replacement deadline past 10 years in accordance with a schedule
that is feasible and prevents known or anticipated adverse health
effects of lead to the extent feasible. To be eligible for a deferred
replacement deadline, systems must meet either criterion or both
criteria as described below. EPA notes that systems eligible for
deferred replacement under the proposed rule may not need the
additional time to replace all LSLs and GRR service lines; therefore,
as discussed below, EPA is proposing to retain the provision in the LCR
and LCRR that States must set a faster rate where feasible for a
system. This proposed requirement would apply irrespective of whether a
system is eligible for a deferred replacement deadline under the
proposed rule.
The first eligibility criterion for deferred service line
replacement is proposed for systems with a high proportion of LSLs and
GRR service lines in their distribution system relative to their total
number of households served. EPA does not have evidence to support
that, for systems meeting this criterion, replacement of all LSLs and
GRR service lines in 10 years would be affordable relative to a large
system; therefore, EPA cannot conclude that the 10-year timeframe would
be ``feasible'' as defined by section 1412(b)(4)(D) of SDWA. EPA is
using the number of LSLs and GRR service lines per household because
the household metric can be considered as a proxy for the number of
individual ratepaying customers or households that can contribute to
the overall replacement program costs through rate revenue.
EPA is proposing that systems would be eligible to defer their
replacement deadline if they exceed a threshold identified in the rule.
The proposed thresholds were calculated to identify the fastest
feasible rate for the estimated one to four percent of systems for
which the 10-year replacement deadline is not expected to be feasible.
Systems would only be able to defer their service line replacement
programs for as many years as necessary to ensure systems are replacing
all LSLs and GRR service lines as quickly as feasible.
For this analysis, EPA investigated replacement rates achieved by
30 large systems (serving more than 50,000 people) with service line
replacement programs (USEPA, 2023g). EPA assumed that the achieved
service line replacement rates were affordable and feasible. EPA
normalized the achieved replacement rate data by the estimated number
of households served to estimate a per-household replacement rate. EPA
considers the 95th percentile normalized rate (0.039 replacements per
household per year) as the affordability threshold because it avoids
setting the rate at the maximum recorded replacements per year rates,
which were achieved by systems known to have received technical and
financial assistance to support their replacement program that is
unlikely to be broadly available when there is a national requirement
to replace LSLs and GRR service lines. A stakeholder during the
proposed LCRI external engagements recommended evaluating a typical
system and avoiding the outlier cases when setting the pace and scope
of a replacement program (USEPA, 2023j). Based on estimates developed
from the number and type of service lines reported in the Needs Survey,
EPA projects that a total of 663 to 2,134 systems (1.3 to 4.3 percent
of all systems) would exceed this threshold (USEPA, 2023g) and be
eligible for the proposed deferred replacement deadline. EPA is
proposing that systems would be permitted to count only known LSLs and
GRR service lines reported in their baseline LCRI inventory (the
service line inventory submitted at the LCRI compliance date). The
purpose of this limitation is to prevent systems from overestimating
LSLs and GRR service lines with the number of unknown service lines and
to avoid incentivizing systems to delay identifying unknown service
lines to be eligible for the proposed deferred deadline provision. The
proposed approach would incentivize systems to prioritize identifying
unknown lines before the rule compliance date and prior to the start of
their replacement programs (i.e., in the three years before compliance
begins), creating public health and transparency benefits. EPA is
seeking additional data on service line replacement rates achieved by
systems in proactive programs (i.e., while any service line replacement
rates achieved by systems is helpful, data provided on replacement
programs that go beyond service line replacement in coordination with
main replacement or emergency repair are especially useful for
evaluating a system's capability to replace service lines at a rate
that protects public health ``to the extent feasible'').
The second eligibility criterion for deferred service line
replacement is proposed for systems that would be required to replace
greater than 10,000 service lines per year under the proposed 10-year
replacement

[[Page 84914]]

requirement. Similar to the per-household deadline deferral option
described above, systems would be permitted to count only known LSLs
and GRR service lines reported in their baseline inventory to be
eligible for this deferral. EPA selected 10,000 as the proposed upper
threshold for what is technically possible because of potential system
capacity to replace up to 10,000 LSLs per year. For example, Detroit's
water system that announced they intend to replace 10,000 LSLs per year
(City of Detroit, 2023), which suggests that Detroit's water system
expects that this many annual replacements is technically possible.
Another example includes the rates achieved by Newark, New Jersey,
between January and March 2020 (CDM Smith, 2022). During this period,
Newark replaced as many as 100 LSLs per day and maintained this rate 4
to 5 days per week. Due to the COVID pandemic, replacement rates
dropped substantially in after March 2020. If this rate of 100 LSLs per
day had been maintained for 20 weeks of the year, it would have
resulted in between 8,000 and 12,000 replacements (CDM Smith, 2022).
This indicates that 10,000 annual replacements could be technically
possible for systems.
Based on the Needs Survey, EPA projects that only three to four
systems nationally may be eligible for this deferral option (USEPA,
2023g). EPA expects that these atypical systems may not be able to
feasibly replace all LSLs and GRR service lines in 10 years because an
average annual 10 percent rate across a rolling three-year period would
correspond to an atypically high number of required annual
replacements, which EPA does not have evidence to support is
``feasible'' as defined in SDWA because it is not ``technically
possible.''
There are many possible factors that influence the number of annual
replacements that are technically possible, some of which EPA heard
during the LCRI external engagements, including seasonal weather
changes that shorten the construction season in cold weather climates
and contractor shortages in regions with many LSLs and GRR service
lines (USEPA, 2023l; USEPA, 2023m). EPA also expects there to be other
practical limitations in communities with atypically high numbers of
required annual replacements, such as widespread service line
replacements and significant street closures interfering with other
water system operations. Service line replacement deferrals for a high
number of required annual replacements could also reduce labor
shortages by preventing larger urban centers from using all the
contractors in the region.
EPA is seeking comment on an alternate annual service line
replacement threshold of 8,000 replacements. One example of a system
achieving this rate is Newark, New Jersey in phase II of their
replacement program. This replacement threshold indicates the number of
annual service line replacements nationwide that a system has
successfully implemented of which EPA is aware. Additional evidence
that indicates 8,000 replacements may be technically possible is that
under Illinois's Lead Service Line Replacement and Notification Act,
Chicago would be required to replace just under 8,000 LSLs per year
(see ``Illinois LSLR Analysis'' in EPA-HQ-OW-2022-0801), considering
only LSLs and excluding unknown lines. Based on the Needs Survey, EPA
projects that only six to seven systems nationally may be eligible for
this alternative deferral option (USEPA, 2023g). EPA is seeking comment
on its overall deferred deadlines approach and the two eligibility
criteria for offering service line replacement deferrals to systems
with a high rate of replacement per households and systems with
atypically high numbers of LSLs and GRR service lines. EPA is
requesting comment on whether to require the State, as a condition of
primacy, to approve the use of the deferred deadline provision where
the water system qualifies for it and/or whether to require the primacy
agency, as a condition of primacy, to assess whether it would be
feasible for a system to meet the 10-year deadline or a shorter
deadline even if they system meets the regulatory criteria for the
deferred deadline. EPA is requesting additional data that indicate
which threshold represents the maximum that is technically possible.
EPA also anticipates that after ten years, when most systems have
completed their service line replacement programs, there will be less
competition for workers as well as supplies to conduct replacements.
Additionally, EPA anticipates that following ten years, supply chains
will have expanded significantly to meet increased demand and that
service line replacement efficiency will increase following a decade of
system experience and the potential availability of new technologies or
procedures to expedite service line replacement. EPA is also seeking
comment on whether data are available that would inform if the
identified maximum replacement rate threshold could increase after ten
years, such as if the threshold could double from 10,000 annual
replacements to 20,000. See section IX. of this document for more
information.
EPA is not proposing that systems should be able to defer service
line replacement for other reasons. Allowing opportunities for systems
to delay service line replacement based on other reasons could create
loopholes that would impede the achievement of 100 percent replacement
of LSLs and GRR service lines as quickly as feasible. Although
stakeholders raised concerns during the proposed LCRI external
engagements that unforeseen factors, such as supply chain delays and
labor shortages, might create temporary delays in a system's
replacement program (USEPA, 2023l), EPA's proposed three-year rolling
average would provide flexibility when temporary shortages impede a
system's ability to replace service lines in a given year (see section
V.B.3.).
EPA also assumes that market forces will largely correct for
shortages in labor or supplies, especially because the proposed
compliance date for the final rule would allow three years for market
corrections to occur before the 10-year service line replacement
requirements even begin. In making this assumption for the proposed
LCRI, EPA considered other examples of markets that are correcting in
the context of drinking water requirements because they could be
informative here. For example, with respect to the market availability
of filters, EPA notes that some systems are already implementing
widespread filter programs (Denver Water, 2023a). EPA is requesting
comment on the ability of the market to correct for potential shortages
in workers and materials to conduct service line replacement, as well
to provide sufficient quantities of filters to comply with the service
line replacement and other relevant provisions in the proposal. See
section IX. for more information.
EPA also expects that system planning efforts can overcome these
shortages. For example, to increase contractor capacity to accelerate
their replacement rate, the City of Detroit actively engaged with
potential contractors in 15 meetings that represented more than 50
organizations (City of Detroit, 2023). The meetings provided an
overview of the procurement process and allowed contractors to ask
questions. These contractors are being solicited to augment Detroit
Water and Sewer Department's 17 new field service technicians who will
also be conducting service line replacement. This City is also hiring
and training local Detroit

[[Page 84915]]

citizens as field service technicians to replace service lines, which
will increase worker capacity for service line replacement (City of
Detroit, 2023).
In another instance, Newark created a lead service line replacement
apprenticeship program to increase worker capacity in the construction
trade. As a result of the apprenticeship program, Newark hired 35
people from the community, most of whom were unemployed prior to the
program. The apprenticeship program is cited as producing economic and
employment benefits, with many of the participants still working with
their company even after certain LSLR contracts have ended. While
Newark has completed its LSLR program, these workers can contribute to
LSLR in other parts of the State under New Jersey's law to replace LSLs
in 10 years (Jersey Water Works, 2020; State of New Jersey, 2021).
Furthermore, a local collaborative, Jersey Water Works, thinks this
apprenticeship program can be replicated in other cities in New Jersey
and other States nationally. With the promulgation of the 2023 Lead
Poisoning Prevention Act in Rhode Island, any water suppliers and their
associated contractors that receive an award of $1 million dollars or
greater for an LSLR program from the State infrastructure bank is
required to participate in an approved apprenticeship program for all
apprenticeable crafts or trades that will be employed on the project at
the time of bid (State of Rhode Island, 2023).
3. Service Line Replacement Rate
Rate Construct
In the 1991 LCR, EPA first noted the difficulty in determining a
uniform, national LSLR rate to apply to all PWSs following a lead
action level exceedance, considering that the number of LSLs and the
population size served can vary substantially between systems (56 FR
26508, USEPA, 1991). The Agency had considered alternate rate
constructs, such as a binning system, to assign different replacement
rates based on different system characteristics but identified
difficulties in designing a practical system (56 FR 26508, USEPA,
1991). EPA promulgated a uniform, national minimum LSLR rate of seven
percent, corresponding to a 15-year deadline to replace all LSLs, where
States must set a faster rate where feasible for systems that exceed
the lead action level. The rule allowed for partial replacement and
test-outs to count towards the replacement rate. In the LCRR, EPA also
promulgated a uniform, national minimum LSLR rate, set at three percent
following a lead action level exceedance and at a goal rate determined
by the State following a trigger level exceedance, where systems
calculate compliance using a two-year rolling average. The LCRR does
not allow partial service line replacements or test-outs to count
towards the replacement rate.
For the LCRI, EPA is proposing a national minimum average annual
service line replacement rate of at least 10 percent, with compliance
assessed in accordance with a three-year rolling average, equating to a
10-year replacement deadline. A single, default replacement deadline
that would apply to all systems, except for systems required by the
State to replace lines by a shortened deadline or estimated to be
eligible for a deferred deadline, helps ensure a less complex rule for
both systems and States, which was identified as a key priority for the
LCRI in the LCRR review.
EPA recognizes that some systems can replace their service lines on
a faster schedule than the default 10-year deadline, so, as noted
earlier in this section, the Agency proposes to maintain the LCR and
LCRR requirement that States set a shortened deadline for an individual
system to complete service line replacement where feasible. EPA
maintains the reasoning from the 1991 LCR record that ``States will be
in the best position to assess the factual circumstances of each
individual system to determine the schedule which the system can
feasibly meet'' and should be the authority to decide whether
individual systems can replace lead and GRR service lines on faster
schedules (56 FR 26508, USEPA, 1991). EPA also maintained this finding
in the LCRR (USEPA, 2020b). EPA expects this finding is even more true
today, given that the implementation of many proactive and mandatory
service line replacement programs nationwide has in recent years
provided States with additional experience with systems' replacement
programs. The proposed requirement that States must set a faster rate
where feasible for individual systems helps ensure that the rule will
require the replacement of all LSLs and GRR service lines as quickly as
feasible, consistent with the SDWA requirement that a treatment
technique rule ``prevent[s] known or anticipated adverse health effects
on the health of persons to the extent feasible'' (SDWA 1412(b)(7)(A)).
EPA is proposing that States must set a shortened replacement
deadline where feasible at any time throughout a system's replacement
program and notify the system of the determination in writing, such as
when the State determines a shorter deadline is feasible at the
beginning of the replacement program or at some point further along the
replacement program. For example, new information obtained during the
replacement period through inventory investigations may inform the
State's decision to require a shorter deadline. This proposed
requirement would ensure systems are replacing service lines as quickly
as feasible, such as where the conditions relevant to the feasibility
of a system's replacement program change. EPA is taking comment on
whether States should be required as a condition of primacy to set
initial shortened deadlines by a certain timeframe, such as no later
than 60 days after the compliance date (for more information, see
section IX. of this document).
EPA is proposing a minimum average annual replacement rate that is
calculated across a rolling three-year period (i.e., a three-year
rolling average). Systems would first assess their average annual
replacement rate at the end of the third year of mandatory service line
replacement program by taking the average of the annual replacement
rate percentages from years one, two, and three. The average annual
replacement rate would be assessed on an annual basis thereafter
starting at the end of the fourth year of mandatory service line
replacement to calculate the average across a three-year period. The
replacement rate construct would ensure that systems are making regular
progress to replace these service lines while also allowing for
flexibility for temporary disruptions to the system's service line
replacement program. Establishing a minimum replacement rate allows
States to enforce necessary actions sooner rather than later to ensure
systems are making regular progress towards service line replacement,
versus requiring only a single deadline that would not allow for such
enforcement to take place before the deadline.
EPA is proposing to use a rolling average because the Agency
recognizes the potential for annual variability in a system's annual
replacement program that can affect the percent of service lines
replaced each year. During the proposed LCRI external engagements, EPA
heard many stakeholders highlight the potential for temporary
disruptions to affect the number of service lines a system can replace
annually, such as supply chain disruptions, workforce limitations,
natural disaster incidents, and factors related to a system's access to
conduct full service line replacements like customer consent (USEPA,
2023l; USEPA, 2023m).

[[Page 84916]]

EPA is also proposing to extend the two-year rolling average used
in the LCRR to a three-year rolling average. Starting the rolling
average at the end of the third year of mandatory service line
replacement program would allow systems flexibility during the initial
years of their replacement programs to identify unknown service lines,
create and manage a replacement program, adjust for market corrections
in labor and supplies, and obtain funding for service line replacement.
It would also provide the system and community served with more time to
advocate for or propose changes to water service agreements, State and
local laws, ordinances, or regulations, to facilitate full service line
replacement, as well as more time for those changes to take effect. For
more information about potential changes to water service agreements,
laws, ordinances, and regulations, please see section V.B.8. of this
document.
A three-year rolling average also addresses stakeholder
recommendations for the end of a replacement program, where
stakeholders said additional flexibility is needed if there is
declining interest in the replacement program, which may require
systems to conduct more outreach for customers to consent to
replacement (USEPA, 2023j). For example, the rolling average could
provide flexibility, so the system remains in compliance if declining
customer interest (such as towards the end of a replacement program) or
temporary disruptions prevent the system from meeting the minimum
annual rate in a single year, so long as the system had achieved higher
replacement rates in the previous two years of its replacement program,
such that the average of the rate across three years is at least ten
percent. The system could then identify and implement strategies to
increase their replacement rate in the future. The rolling average
could also better allow systems to conduct replacements at prioritized
sites, as this approach may take additional time relative to replacing
service lines considering only replacement efficiency (e.g., focusing
on areas with high LSL density).
Minimum Replacement Rate
In the LCRR, systems serving more than 10,000 people are required
to conduct full service line replacement of LSLs and GRR service lines
after exceeding the trigger level under a goal-based program at a rate
approved by the State as well as to replace service lines under a
mandatory replacement program after exceeding the lead action level at
a minimum rate of three percent over a two-year period. To calculate
the number of service lines requiring replacement in the LCRR, systems
add the number of LSLs and GRR service lines in the initial inventory
when the system first exceeds the trigger or action level plus the
number of unknown lines in the beginning of each year of a system's
annual goal or mandatory LSLR program.
EPA has found that its proposed minimum average annual rate of 10
percent calculated across a three-year rolling period is feasible as
defined in section 1412(b)(4)(D) of SDWA. See section V.B.2. for a
discussion on feasibility of the proposed service line replacement
requirements. During the LCRR review and proposed LCRI external
engagements, some stakeholders recommended that all LSLs should be
replaced as soon as possible but not in more than 10 years, given the
benefits of replacement to lower lead exposure from drinking water
(USEPA, 2023h; USEPA, 2023i; USEPA, 2023j). Other stakeholders
recommended retaining the three-percent rate because a higher rate is
more challenging to meet when partial replacements and test-outs do not
count as full service line replacements (USEPA, 2023j). Some
stakeholders said that the LCRI should maintain the LCR's minimum seven
percent replacement rate because the LCRR's three-percent replacement
rate was too slow to protect public health, not counting partial
replacement or test-outs (see docket no. EPA-HQ-OW-2021-0255; USEPA,
2023j). Other stakeholders said that replacing all LSLs in less than 10
years may not be feasible for many systems that have a large number of
LSLs (USEPA, 2023j), and that any timeline should be balanced with
other competing activities the system is required to conduct (USEPA,
2023j). While EPA determined that a 10-year replacement deadline is
feasible in accordance with SDWA requirements (see section V.B.2.), EPA
is also proposing service line replacement deferral options for systems
meeting specific criteria because the 10-year replacement may be
infeasible, as described in section V.B.2.
EPA is proposing that a system's ``replacement pool'' be calculated
and updated annually in a similar way as the LCRR's number of service
lines requiring replacement: the sum of the LSLs and GRR service lines
in the baseline inventory (the inventory submitted by the LCRI
compliance date), any non-lead service lines discovered as lead or GRR
service lines, and the current number of unknown service lines in the
inventory. The proposal details how a system calculates the annual
number of replacements needed for a given program year by dividing the
number of lines in the replacement pool by the number of years of the
system's replacement deadline (e.g., 10 years, or an alternative
deadline for a State-set shortened deadline or a deferred deadline).
EPA is proposing the replacement pool be updated annually to subtract
unknown service lines identified as non-lead lines as well as to add
any non-lead lines found to be LSLs or GRR service lines. Unknown
service lines identified to be LSLs or GRR service lines would be
recategorized in the replacement pool; although, this recategorization
would not change the number of lines in the replacement pool nor would
it affect the replacement rate because they would already have been
counted as LSLs or GRRs in determining the replacement pool and rate.
EPA is also proposing the replacement pool be updated annually to
subtract unknown service lines identified as non-lead lines as well as
to add any non-lead lines found to be LSLs or GRR service lines. This
approach incentivizes systems to investigate unknown service lines at a
faster rate to reduce their replacement pool and, therefore, the annual
number of replacements they must conduct. Faster identification of
unknown lines, including prior to the rule compliance date, would both
improve public health protection and transparency with the community.
EPA is seeking comment on its proposed minimum average annual
replacement rate and proposed replacement deadline of ten years. EPA is
seeking comment on whether it is feasible or systems across the nation
to complete service line replacement in a shorter timeframe than ten
years, such as in six, seven, or eight years. EPA also is seeking
comment on the rate construct approach, including how to calculate
compliance with a given service line replacement deadline and average
annual rate calculated across a rolling three-year period. EPA also
seeks comment on whether systems should be required to meet a given
minimum replacement rate in the first three years to give States an
opportunity to enforce replacement rate progress sooner than three
years after the compliance date. Lastly, EPA seeks comment on the
complexity of the rate construct (see section IX. of this document).
4. Scope of Mandatory Service Line Replacement Requirement
Full Service Line Replacement
EPA is proposing to specify which replacements would count as a
full

[[Page 84917]]

service line replacement in Sec. 141.84(d)(6)(iii)(B) and (C) and
which do not count in Sec. 141.84(d)(6)(iii)(D), as described below.
While the LCRR used the definition of ``full lead service line
replacement'' in subpart A of part 141 to specify full replacement
criteria, these are substantive provisions that are integral to the
requirements in Sec. 141.84 (the service line inventory and
replacement section). Including these substantive requirements in the
service line replacement section of subpart I of part 141 instead of
the definitions section of subpart A of part 141 should help water
systems and States in implementation of these regulatory requirements.
EPA is proposing to modify the requirement in the LCRR definition
of full lead service line replacement, which specified that the line
had to meet the SDWA section 1417 definition of lead free that is
applicable at the time of the full replacement. As raised by
stakeholders in the proposed LCRI external engagements, the previous
requirement could have required systems to prove that all solder or
fittings meet the latest lead free definition in order to count as a
full service line replacement (USEPA, 2023m), which was not EPA's
intent. EPA recommends removing all sources of lead from drinking
water; however, a requirement for the water system to document the
material composition of each fitting and all solder in the service line
would not be practicable and would divert resources from replacing LSLs
and GRR service lines as quickly as feasible as well as likely result
in the unnecessary replacement of lead free fittings and solder where
documentation of their material is unable to be obtained. EPA is
therefore changing the criteria for full service line replacement to
require that the new service line (replacing the old line) must meet
the proposed LCRI definition for the ``non-lead'' service line material
categorization. To meet the definition of ``non-lead,'' a service line
must be determined through an evidence-based record, method, or
technique not to be an LSL or GRR service line.
EPA is proposing to allow systems to physically disconnect the
service line (such as by cutting the pipe) and count the disconnection
as a full service line replacement if the service line is not in active
use (such as at abandoned properties) and there is a State or local law
in place or a system policy documented in writing that prohibits
disconnected LSLs and GRR service lines from being put back into
service. This proposed flexibility is in response to input heard during
the proposed LCRI consultations, where a stakeholder recommended
mandatory service line replacement account for cities that are
sometimes home to tens of thousands of vacant housing units, which are
not in active use and do not pose a risk of lead exposure in drinking
water (USEPA, 2023j). This approach would address these lead sources
more quickly and at a lower cost than a full service line replacement,
which could likely increase the annual number of replacements a system
may conduct, reduce costs by avoiding full replacement of lines that
are not expected to be used again or by deferring the cost of
replacement until the building is used again or the property is
redeveloped. These costs savings could benefit the entire community by
lowering the costs of the entire replacement program, potentially
stretching external funding to conduct replacement of more lines and
provide greater health protection to more individual customers. EPA
notes that a potential downside of this approach is that allowing these
disconnections to count as full service line replacements, which do not
generate public health benefits, may delay public health benefits to
consumers if these disconnections are conducted before full service
line replacements of occupied residences.
EPA is seeking comment on allowing this practice to count towards a
full service line replacement under the mandatory service line
replacement program, whether the Agency should prohibit reconnection of
these disconnected LSL or GRR service lines, and any alternative
approaches to this practice. See section IX. of this document for more
information.
EPA is also proposing to count full service line replacements where
a non-lead service line is installed for use and the lead or GRR
service line is disconnected from the water main or other service line.
EPA is also proposing that when the lead or GRR service line is
disconnected from the water main or system-owned portion of the service
line but not removed, the water system must be subject to a State or
local law or have a written policy to preclude the water system from
reconnecting the lead or galvanized requiring replacement service line
to the water main or other service line. EPA is seeking comment on
EPA's approach to counting these lines as full replacements.
The proposed LCRI also would not permit lining or coating
technologies to count as full service line replacement. Central to this
rule is the goal of permanently removing from service all LSLs and GRR
service lines in the nation. Lining and coating technologies do not
permanently remove these lead sources from service. In addition, the
uncertainty of the performance of these technologies over time would
potentially require additional monitoring to ensure lead levels at the
tap remain low. The added costs of site-specific evaluation to
determine if this technology is appropriate, continued site monitoring
to evaluate performance, and eventual re-lining or replacement of the
service line when it reaches the end of its useful life, may reduce any
potential cost savings associated with lining and coating technologies
relative to full service line replacement, especially when compared to
less expensive replacement methods (i.e., trenchless replacement
technologies).
Partial Service Line Replacement
While the LCRR eliminates any requirement for water systems to
conduct partial replacements to comply with the rule's mandatory and
goal-based LSLR requirements, the rule does not explicitly restrict or
ban partial replacements because partial replacements may be necessary
to maintain water service in certain cases (e.g., following an
emergency repair where the water system does not have access to conduct
full service line replacement). The LCRR requires that, when conducting
a partial LSLR, systems must provide advance notification to customers
along with an offer to replace the customer-owned portion of the LSL
and take risk mitigation measures after a partial replacement to reduce
lead exposure that may result from the partial replacement, including
providing public education and a pitcher filter or point-of-use device.
The proposed LCRI, like the LCRR, would continue to prohibit both
partial service line replacements and ``test-outs'' (i.e., where a tap
sample from the service line tests at or below the lead action level
following a minimum six-hour stagnation and is therefore considered
``replaced'') from counting towards the required average annual
replacement rate, permitting only full service line replacements to
count towards the replacement rate. Research has found that partial
LSLR has not been shown to reliably reduce lead levels in the short
term and may temporarily increase lead levels due to disruptions of
established scales or galvanic corrosion (USEPA, 2011; see sections
V.B.6. and V.B.9.), while service lines that have been sampled and have
tested-out may contribute to lead at a later date (Del Toral et al.,
2013).

[[Page 84918]]

In the LCRI, EPA is proposing to prohibit partial service line
replacements unless it is conducted as part of an emergency repair or
in coordination with planned infrastructure work, excluding planned
infrastructure work solely for the purposes of LSL or GRR service line
replacement. The exclusion clause would ensure that the rule itself
does not cause additional partial replacements to be conducted solely
for the purpose of LSL or GRR service line replacement. Planned
infrastructure work would include water infrastructure or capital
improvement projects that do not solely replace lead and GRR service
lines as part of a service line replacement program. EPA discourages
partial service line replacement due to its potential to temporarily
increase lead levels in drinking water; however, the Agency anticipates
an outright ban on the practice could be infeasible (USEPA, 2020b). For
example, water systems conducting emergency main replacement may
require the removal of at least a portion of the LSL due to the
alignment or spacing requirements to connect the new main with existing
service lines (USEPA, 2020b; USEPA, 2023j). Although EPA views planned
and emergency infrastructure work as an opportunity for coordination
with full service line replacement, barriers to access to the customer-
owned service line may occur. EPA seeks any supporting or contrary
views, any data or analyses about this exclusion of planned
infrastructure work from the prohibition on partial service line
replacement, and whether there are any additional limitations that
could be added to ensure that partial service line replacements are
only performed when necessary to avoid greater harms as a result of the
emergency or inability to conduct planned infrastructure work for
purposes other than solely to replace LSLs and GRR service lines. EPA
strongly encourages water systems to conduct full service line
replacement in coordination with planned infrastructure work to realize
the efficiencies that can be gained (see section V.B.7. of this notice
for additional information on service line replacement plans).
EPA considered requests from stakeholders to ban all partial
replacements in all circumstances. However, as stated above, the Agency
anticipates an outright ban on the practice could be infeasible (USEPA,
2020b). In the case of some emergency repairs, a partial replacement
may be necessary to ensure prompt restoration of water service to the
customer. Water service is critical to public health as it provides
water for drinking, cooking, and sanitation.
LSLs and GRR service lines are likely to undergo significant
disturbance as a result of planned infrastructure work or emergency
repairs, increasing the risk from all lead sources that remain
following the infrastructure work including partial, customer-side
LSLs. To address the increased risk as a result of the disturbance, EPA
is proposing that the system implements additional risk mitigation
actions (see section V.B.6.). Proposed risk mitigation measures would
take place immediately following the partial replacement and extend for
up to six months after the partial replacement to protect public
health. Coordinating replacements with existing infrastructure work may
also result in lower costs of the overall replacement program and lower
cost impacts to households where the program is funded through rate
revenue. A stakeholder noted that this can also benefit low-income
customers, who may be paying a larger percentage of their income
towards their water bill (USEPA, 2023j). Proposed risk mitigation
measures would take place prior to, during, and immediately following
the partial replacement and extend for up to six months after the
partial replacement to protect public health.
The proposed requirement to prohibit partial replacements, except
during the limited circumstances described above, would improve public
health protection by further limiting instances of partial service line
replacements that pose risks to public health. EPA anticipates it will
also strengthen environmental justice outcomes by eliminating partial
replacements for lower-income customers solely for the purpose of
service line replacement, given the greater costs of full replacement.
In cases where partial replacement is planned to occur in coordination
with non-emergency infrastructure work, EPA is proposing that systems
must offer to replace the customer-owned portion at least 45 days prior
to the replacement. The system would not be required to complete the
full service line replacement where it does not have access to the
customer-owned portion of the line. For more information about EPA's
proposed requirements related to access, see section V.B.5. of this
document. In the cases where the system is unable to gain access to
complete the full service line replacement, it must take the proposed
risk mitigation and notification protocols to reduce lead exposure to
the consumer(s). The proposed rule also would require systems to
include a dielectric coupling separating the remaining service line and
the new service line to pre

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