National Primary Drinking Water Regulations for Lead and Copper
Federal RegisterJan 12, 2000
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SUMMARY: The Environmental Protection Agency (EPA) is making several
minor revisions to the national primary drinking water regulations
(NPDWRs) for lead and copper to improve implementation. The intended
effect of this action is to eliminate unnecessary requirements,
streamline and reduce reporting burden, and promote consistent national
implementation. The changes promulgated in today's action do not affect
the lead or copper maximum contaminant level goals, the action levels,
or the basic regulatory requirements. In compliance with the Paperwork
Reduction Act (PRA), this action also amends the table that lists the
Office of Managment and Budget (OMB) control numbers issued under the
PRA for NPDWRs for Lead and Copper.
DATES: This final rule is effective April 11, 2000.
For judicial review purposes, this final rule is promulgated as of
1 p.m., eastern time on January 26, 2000, as provided in 40 CFR 23.7.
ADDRESSES: The rulemaking record, including public comments on the
proposed revisions and EPA's responses, applicable Federal Register
notices, other major supporting documents, and a copy of the index to
the public docket for this rulemaking, are available for review at
EPA's Water Docket; 401 M Street, S.W., Washington, DC 20460. For
access to the Docket materials, call (202) 260-3027 between 9:00 a.m.
and 3:30 p.m. Eastern Time for an appointment and directions to room
EB57.
FOR FURTHER INFORMATION CONTACT: The Safe Drinking Water Hotline, toll
free (800) 426-4791, or Judy Lebowich; Standards and Risk Management
Division; Office of Ground Water and Drinking Water; EPA (4607); 401 M
Street S.W.; Washington, DC 20460; telephone (202) 260-7595.
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially regulated by this Lead and Copper Rule Minor
Revisions (LCRMR) rulemaking are public water systems (PWSs) that are
classified as either community water systems (CWSs) or non-transient
non-community water systems (NTNCWSs). Regulated categories and
entities include:
------------------------------------------------------------------------
Examples of regulated
Category entities
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Industry.................................. Privately-owned CWSs and
NTNCWSs.
State, Tribal, and local governments...... Publicly-owned CWSs and
NTNCWSs.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities regulated by the LCRMR. This table
lists the types of entities that EPA is now aware could potentially be
regulated by the LCRMR. Other types of entities not listed in the table
could also be regulated. To determine whether your facility is
regulated by the LCRMR, you should carefully examine the applicability
criteria in Secs. 141.3 and 141.80(a) of title 40 of the Code of
Federal Regulations (CFR). If you have questions regarding the
applicability of the LCRMR to a particular entity, consult the person
listed in the preceding FOR FURTHER INFORMATION CONTACT Section.
Effective Date
Section 1412(b)(10) of the Safe Drinking Water Act (SDWA)
Amendments of 1996 specifies that any amendments to a NPDWR promulgated
under SDWA section 1412 shall take effect on the date that is 3 years
after the date on which the regulation is promulgated ``unless the
Administrator determines that an earlier date is practicable, except
that the Administrator, or a State (in the case of an individual
system), may allow up to 2 additional years to comply with a maximum
contaminant level or treatment technique if the Administrator or State
(in the case of an individual system) determines that additional time
is necessary for capital improvements.''
Section 1445(a) of the SDWA, which authorizes EPA to establish
recordkeeping, reporting and monitoring requirements, does not
specifically address when such requirements shall become effective. The
Agency's authority to establish effective dates for requirements under
this provision, therefore, is governed by the Administrative Procedure
Act, 5 U.S.C. 553(d), which provides that an Agency publish a final
rule in the Federal Register not less than 30 days before its effective
date, although an earlier effective date can be established under
certain circumstances.
The Agency believes that a delay of three years is not necessary,
or appropriate. The revisions in today's action are effective April 11,
2000. Until today's action takes effect, the existing requirements of
the NPDWRs for Lead and Copper, and applicable State requirements,
remain in effect and are enforceable.
As noted above, section 1412(b)(10) provides the Agency with
flexibility to establish an effective date for a NPDWR earlier than 3
years after promulgation where ``practicable''. In addition, under
section 1445(a), EPA has the flexibility to establish an effective date
for recordkeeping, reporting, and monitoring requirements any time not
shorter than 30 days after promulgation. EPA is promulgating the
recordkeeping, reporting, and monitoring requirements under both
sections 1445 and 1412 of the SDWA, and the remainder of the rule under
section 1412. EPA believes that a 90-day effective date is appropriate
under both of these provisions. For purposes of its effective date
under section 1412, EPA believes it is practicable for systems to
implement the revised rule requirements in today's rule in 90 days.
First, the revisions to the existing regulation are minor and generally
do not require any installation of new or different treatment by PWSs.
Second, this rule in many respects streamlines existing requirements
and some of the benefits of the regulation will not be realized if
implementation were to be delayed for three years. Because the
effective date is well in advance of the deadline for State adoption of
these revised regulations, EPA will take steps to enter into a
cooperative agreement with the States to ensure that the primacy States
(rather than EPA) continue to be the lead entity implementing these new
requirements. Although EPA will enforce the new regulations until
States get primacy for the revised regulations, States will share
information with EPA about water system compliance with the new
requirements.
More Stringent State Provisions
For water systems in those States that have primary enforcement
responsibility for the 1991 Lead and Copper Rule (LCR), State program
requirements that are more stringent than revisions in today's rule
will continue to govern until the primacy State incorporates these
revisions into its approved Primacy program. As discussed in the next
section, States have two years, from the date of promulgation, to
revise their Primacy program to incorporate the revisions in today's
rule, unless they qualify for an
[[Page 1951]]
extension. Table 1 identifies which provisions in today's rule, which
are less stringent than the 1991 LCR and which, therefore, must be
adopted into the primacy State's regulations before they can be
implemented by water systems within the State's jurisdiction. Water
systems, therefore, should check with their Primacy Agency before
implementing any of these less stringent provisions.
Table 1.--LCRMR Provisions Requiring State Adoption Prior to Implementation
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CFR Section Revision
----------------------------------------------------------------------------------------------------------------
141.81.................................... Deemed to have optimized corrosion control criterion under Sec.
141.81(b)(3)(i).
141.82.................................... Compliance determinations under Sec. 141.82(g).
141.85.................................... All revisions to section.
141.86.................................... Following revisions:
Eliminate justification letters for too few tier 1 sites
(formerly under Sec. 141.86(a)(8)) and/or lead service line sample
sites (formerly under Sec. 141.86(a)(9));
NTNCWSs and special-case CWSs without sufficient first-draw
sites under Secs. 141.86(b)(1), (2), and (5);
Minimum holding time for acidified lead and copper samples
prior to analysis under Sec. 141.86(b)(2);
Eliminate requirement for systems subject to water quality
parameter monitoring to explicitly request approval for reduced
monitoring under Secs. 141.86(d)(4)(ii) and (iii);
Use of alternate period to conduct reduced lead and copper
tap monitoring under Sec. 141.86(d)(4)(iv);
Accelerated reduced monitoring for lead and copper at the
tap under Sec. 141.86(d)(4)(v);
Sample invalidation under Sec. 141.86(f); and
Monitoring waivers under Sec. 141.86(g).
141.87.................................... All revisions to section except the table at the end of the section.
141.88.................................... Reduced source water monitoring for systems without maximum
permissible source water levels.
141.89.................................... All revisions to section.
141.90.................................... All revisions to Secs. 141.90(a)(1), 141.90(a)(2), 141.90(a)(4),
141.90(a)(5), and 141.90(h).
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Primacy State Program Revisions
States with primary enforcement responsibility (``primacy'') under
40 CFR Part 142 subpart B must adopt, and submit to EPA for approval, a
primacy program revision to incorporate all new and revised EPA
regulations into their approved primacy program. As a condition of
primacy, a State is required to adopt, a State rule that is no less
stringent than EPA's regulations. Table 2 identifies those provisions
in today's action that States must adopt to retain primacy. The
requirements States must meet to receive primacy are listed in
Sec. 142.10 and requirements to revise an approved primacy program are
in Sec. 142.12. Special primacy requirements unique to specific
regulations are in Sec. 142.16.
On April 28, 1998, EPA amended its State primacy regulations at 40
CFR 142.12 (EPA 1998d, 63 FR 23362). In accordance with these
regulations, States must adopt the LCRMR by January 14, 2002; however,
under certain circumstances States may receive an extension of up to
two years. These State primacy regulations also incorporate the new
process identified in the 1996 SDWA amendments for granting primary
enforcement authority to States while their applications to modify
their primacy programs are under review. The new process grants interim
primary enforcement authority for a new or revised regulation during
the period in which EPA is making a determination with regard to
primacy for that new or revised regulation. This interim enforcement
authority begins on the date of the primacy application submission or
the effective date of the new or revised State regulation, whichever is
later, and ends when EPA makes a final determination. However, this
interim primacy authority is only available to a State whose existing
approved primacy program is current with respect to every existing
NPDWR in effect when the new regulation is promulgated. As a result,
States that have primacy for every existing NPDWR already in effect may
obtain interim primacy for this rule, beginning on the date that the
State submits its complete and final application for primacy for this
rule to EPA, or the effective date of its revised regulations,
whichever is later. In addition, a State which wishes to obtain interim
primacy for future NPDWRs must obtain primacy for this rule.
Table 2.--LCRM Provisions Requiring State Adoption to Maintain Primacy
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CFR Section Revision
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141.81.................................... All revisions to section except deemed to have optimized corrosion
control criterion under Sec. 141.81(b)(3)(i).
141.82.................................... All revisions to section except compliance determinations under Sec.
141.82(g).
141.84.................................... All revisions to section.
141.86.................................... Following revisions:
Requirement to use representative sites under Secs.
141.86(a)(5) and (a)(7) when the system has insufficient tier 1, 2,
or 3 sites;
Requirement that reduced monitoring must be representative
and that States may specify sampling locations for reduced
monitoring under Sec. 141.86(c); and
Requirement to notify the State of a change in treatment or
additional of a new source for sysems on reduced monitoring under
Sec. 141.86(d)(4)(vii).
141.88.................................... Resampling triggers for composite source water samples, if the State
allows compositing
141.90.................................... All revisions to Secs. 141.90(a)(3), 141.90(f).
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[[Page 1952]]
Table of Contents
List of Tables
Glossary of Abbreviations and Definitions Used in This Document
A. Background
1. Reason for this rulemaking
2. Overview of public comments received
3. Impacts on costs and benefits
B. Continued exclusion of transient non-community water systems
1. Overview and summary of Agency position
2. Detailed discussion of rationale
a. Background
b. Occurrence and exposure at transient systems
c. Health effects of lead
d. Objections to the exclusion
C. Revisions to 40 CFR 141, requirements for public water systems
1. Revisions to Sec. 141.81
a. Clarification of the requirement to install and maintain
operation of optimal corrosion control
(i) Proposed revision and background
(ii) Comments and analysis
(iii) Today's action
b. Water systems deemed to be optimized pursuant to
Sec. 141.81(b)(2)
(i) Proposed revision and background
(ii) Comments and analysis
(iii) Today's action
c. Water systems deemed to have optimized corrosion control
under Sec. 141.81(b)(3)
(i) Copper action level requirements
(A) Proposed revision and background
(B) Comments and analysis
(C) Today's action
(ii) Routine monitoring for lead and copper at the tap
(A) Proposed revision and background
(B) Comments and analysis
(C) Today's action
(iii) State discretion to impose additional requirements
(A) Proposed revision and background
(B) Comments and analysis
(C) Today's action
(iv) Systems triggered into corrosion control
(A) Proposed revision and background
(B) Comments and analysis
(C) Today's action
(v) Difference between source water lead concentrations and 90th
percentile lead levels
(A) Proposed revision and background
(B) Comments and analysis
(C) Today's action
2. Revisions to Sec. 141.82
a. Clarification of requirement to operate and maintain optimal
corrosion control
b. Excursions from State-designated optimal water quality
parameter ranges or values
(i) Proposed revision and background
(ii) Comments and analysis
(iii) Today's action
3. Revisions to Sec. 141.84
a. Proposed revision and background
b. Comments and analysis
(i) Definition of ``control''
(ii) Elimination of the rebuttable presumption
(iii) Possible adverse health effects associated with partial
LSL replacement
(iv) Resident notification of partial LSL replacement
(v) Reporting of post-replacement sampling results to the State
(vi) Financial impacts of LSL replacement
(vii) Other LSL comments
c. Today's action
4. Revisions to Sec. 141.85
a. Changes affecting content of written materials
(i) Proposed revision and background
(ii) Comments and analysis
(iii) Today's action
b. Public education delivery requirements
(i) CWSs serving 3,300 or fewer people
(A) Proposed revision and background
(B) Comments and analysis
(C) Today's action
(ii) Timing and method of distribution
(A) Proposed revision and background
(B) Comments and analysis
(C) Today's action
c. Schedule for reporting completion of public education tasks
(i) Proposed revision and background
(ii) Comments and analysis
(iii) Today's action
5. Revisions to Sec. 141.86
a. Systems with an insufficient number of tier 1, 2, and 3
sample sites
(i) Proposed revision and background
(ii) Comments and analysis
(iii) Today's action
b. Elimination of justification letters for use of non-tier 1
sample sites and insufficient lead service line sample sites
(i) Proposed revision and background
(ii) Comments and analysis
(iii) Today's action
c. NTNCWSs without enough taps to provide first-draw samples
(i) Proposed revision and background
(ii) Comments and analysis
(iii) Today's action
d. Minimum holding time for acidified lead and copper samples
prior to analysis
(i) Proposed revision and background
(ii) Comments and analysis
(iii) Today's action
e. Selection of sample sites under reduced monitoring
(i) Proposed revision and background
(ii) Comments and analysis
(iii) Today's action f. State determination of eligibility for
reduced monitoring
(i) Proposed revision and background
(ii) Comments and analysis
(iii) Today's action
g. Timing of sample collection under reduced monitoring
(i) Proposed revision and background
(ii) Comments and analysis
(iii) Today's action
h. Accelerated reduced monitoring for lead and copper at the tap
(i) Proposed revision and background
(ii) Comments and analysis
(A) Using the PQL as the lead threshold
(B) Usefulness of proposed provision
(C) Accelerated reduced monitoring for only one contaminant
(D) Monitoring less frequently than triennially
(E) Prior State approval
(iii) Today's action
i. Loss of eligibility for reduced lead and copper tap water
monitoring
j. Requirements for systems subject to reduced monitoring that
change treatment or source water
(i) Proposed revision and background
(ii) Comments and analysis
(iii) Today's action
k. Sample invalidation
(i) Proposed revision and background
(ii) Comments and analysis
(iii) Today's action
l. Monitoring waivers for small systems
(i) Proposed revision and background
(ii) Comments and analysis
(A) Materials specification
(B) Monitoring issues
(C) Changes potentially affecting monitoring waivers
(D) Waiver renewals
(E) Partial waivers
(F) Pre-existing waivers
(iii) Today's action
6. Revisions to Sec. 141.87
a. Monitoring for optimal water quality parameters
b. Use of representative sites for entry point water quality
parameter monitoring at ground water systems
(i) Proposed revision and background
(ii) Comments and analysis
(iii) Today's action
c. Accelerated reduced monitoring for water quality parameters
at the tap
(i) Proposed revision and background
(ii) Comments and analysis
(iii) Today's action
d. Summary of water quality monitoring requirements
7. Revisions to Sec. 141.88
a. Resampling triggers for composite source water samples
(i) Proposed revision and background
(ii) Comments and analysis
(iii) Today's action
b. Reduced source water monitoring for systems without State-
designated maximum permissible source water levels
(i) Proposed revision and background
(ii) Comments and analysis
(iii) Today's action
8. Revisions to laboratory certification requirements in
Sec. 141.89
a. Proposed revision and background
b. Comments and analysis
c. Today's action
9. Revisions to system reporting requirements in Sec. 141.90
a. Timing of reporting of tap water monitoring for lead and
copper and water quality parameter monitoring
(i) Proposed revision and background
(ii) Comments and analysis
(iii) Today's action
b. Elimination of certification requirements pertaining to
first-draw samples
(i) Proposed revision and background
(ii) Comments and analysis
(iii) Today's action
c. State calculation/reporting of 90th percentile levels
(i) Proposed revision and background
(ii) Comments and analysis
[[Page 1953]]
(iii) Today's action
10. Revisions to Sec. 141.43
D. Revisions to requirements for States
1. Records kept by States
2. Reporting requirements for States
a. Proposed revision and background
b. Comments and analysis
c. Today's action
3. Special primacy considerations
E. Burden reduction suggestions not adopted
1. Reduced frequency of water quality parameter monitoring at
entry points for systems subject to water quality parameter
monitoring requirements
a. Burden reduction suggestion and background
b. Comments and analysis
2. Use of flushing/bottled water at NTNCWSs in lieu of corrosion
control treatment
a. Burden reduction suggestion and background
b. Comments and analysis
3. Requirement for water systems to justify corrosion control
methods not recommended
a. Burden reduction suggestion and background
b. Comments and analysis
4. Use of alternatives to tap samples to assess corrosion
control effectiveness
a. Burden reduction suggestion and background
b. Comments and analysis
5. Reduced frequency for State reporting of 90th percentile and
milestone data
a. Burden reduction suggestion and background
b. Comments and analysis
F. Simultaneous compliance comments
1. Request for comments and background
2. Comments and analysis
3. Today's action
G. Administrative requirements
1. Executive Order 12866
2. Regulatory Flexibility Act
3. Paperwork Reduction Act
4. Unfunded Mandates Reform Act
5. Executive Orders on Federalism
6. Consultation with Indian tribal governments
7. Risk to children analysis
8. National Technology Transfer and Advancement Act
9. Likely effect of compliance with the LCRMR on the technical,
financial, and managerial capacity of public water systems
10. Submission to Congress and the General Accounting Office
H. References
List of Tables
Table 1--LCRMR provisions requiring State adoption prior to
implementation
Table 2--LCRMR provisions requiring State adoption to maintain
primacy
Table 3--Summary of monitoring requirements for water quality
parameters
Table 4--Summary of changes to system reporting requirements
Table 5--Net Effect of LCRMR on Average Annual Recordkeeping and
Reporting Burden and Cost
Glossary of Abbreviations and Definitions Used in This Document
The following definitions are presented to assist the reader in
understanding acronyms and other short-hand phrases used in the
preamble.
(b)(1) System: A small or medium-size water system that is deemed
to have optimized corrosion control pursuant to 40 CFR 141.81(b)(1).
(b)(2) System: A water system that is deemed to have optimized
corrosion control pursuant to 40 CFR 141.81(b)(2).
(b)(3) System: A water system that is deemed to have optimized
corrosion control pursuant to 40 CFR 141.81(b)(3).
g/D: Micrograms per day.
g/L: Micrograms per liter.
1991 Rule: Maximum Contaminant Level Goals and National Primary
Drinking Water Regulations for Lead and Copper as promulgated on June
7, 1991 (56 FR 26460) and subsequently modified by technical amendments
published on July 15, 1991 (56 FR 32113), June 29, 1992 (57 FR 28786)
and June 30, 1994 (59 FR 33860).
90th Percentile Value: The concentration of lead or copper in tap
water exceeded by 10 percent of the sites sampled during a monitoring
period.
Action Level: The 90th percentile value for lead or copper in water
that determines, in some cases, whether a water system must install
corrosion control treatment, monitor source water, replace lead service
lines, and undertake a public education program.
April 1996 Proposal: Maximum Contaminant Level Goals and National
Primary Drinking Water Regulations for Lead and Copper; Proposed Rule
(61 FR 16348, April 12, 1996) requesting public comments on proposed
minor revisions to the 1991 Rule.
April 1998 Notice: Maximum Contaminant Level Goals and National
Primary Drinking Water Regulations for Lead and Copper; Proposed Rule
(63 FR 20038, April 22, 1998) containing additional data and regulatory
options relating to the April 1996 Proposal and requesting public
comment on these new data and options.
August 1998 Notice: Maximum Contaminant Level Goals and National
Primary Drinking Water Regulations for Lead and Copper; Proposed Rule
(63 FR 44214, August 18, 1998) requesting public comment on a
refinement of a regulatory option discussed in the April 1998 Notice.
ASDWA: Association of State Drinking Water Administrators.
AWWA: American Water Works Association.
CCT: Corrosion control treatment.
CFR: Code of Federal Regulations.
CWS: Community Water System.
DDBP: National Primary Drinking Water Regulations--Disinfectants
and Disinfection Byproducts; Final Rule (63 FR 69389, Dec. 16, 1998).
DSC: Data Sharing Committee.
EPA: Environmental Protection Agency.
Excursion: A ``daily value'' (calculated pursuant to
Sec. 141.82(g)) for a water quality parameter at a sampling location
that is below the minimum value or outside the range of values
designated by the State under Sec. 141.82(f) as representing optimal
corrosion control for the water system.
FDA: Food and Drug Administration.
FR: Federal Register.
IESWTR: National Primary Drinking Water Regulations--Interim
Enhanced Surface Water Treatment; Final Rule (63 FR 69477, Dec. 16,
1998).
Large System: For purposes of the Lead and Copper Rule only, a
water system serving more than 50,000 people.
LCR: Lead and Copper Rule.
LCRMR: Lead and Copper Rule Minor Revisions.
LSL: Lead service line.
MCLG: Maximum contaminant level goal.
MDL: Method Detection Limit.
Medium-Size System: For purposes of the Lead and Copper Rule only,
a water system serving from 3,301 to 50,000 people.
mg/L: Milligrams per liter.
NAS: National Academy of Sciences.
NPDWRs: National Primary Drinking Water Regulations.
NRDC: National Resources Defense Council.
NSF: National Sanitation Foundation.
NTNCWS: Non-transient non-community water system.
OCCT: Optimal corrosion control treatment.
OMB: Office of Management and Budget.
OWQP: Optimal water quality parameter.
PE: Performance evaluation.
pH: Negative logarithm of the effective hydrogen-ion concentration.
Phase I Rule: National Primary Drinking Water Regulations Synthetic
Organic Chemicals; Monitoring for Unregulated Contaminants; Final Rule
(52 FR 25690, Jul. 8, 1987).
Phase II Rule: National Revised Primary Drinking Water
Regulations--Synthetic Organic Chemicals and Inorganic Chemicals;
Monitoring for Unregulated Contaminants; National Primary Drinking
Water Regulations Implementation; National Secondary
[[Page 1954]]
Drinking Water Regulations (56 FR 3526, Jan. 30, 1991).
Phase V Rule: National Primary and Secondary Drinking Water
Regulations; Synthetic Organic Chemicals and Inorganic Chemicals; Final
Rule (57, FR 31776, Jul. 17, 1992).
ppb: Part per billion.
PQL: Practical quantitation level.
PRA: Paperwork Reduction Act.
PWS: Public water system.
RFA: Regulatory Flexibility Act.
SDWA: Safe Drinking Water Act.
SDWIS: Safe Drinking Water Information System.
Small System: For purposes of the Lead and Copper Rule only, a
water system serving 3,300 or fewer people.
TNCWS: Transient non-community water system.
UMRA: Unfunded Mandates Reform Act.
WQP: Water quality parameter.
A. Background
1. Reason for this rulemaking. EPA promulgated maximum contaminant
level goals (MCLGs) and NPDWRs for lead and copper in 1991 (56 FR
26460, June 7, 1991). The goal of the LCR is to provide maximum human
health protection by reducing lead and copper levels at consumers' taps
to as close to the MCLGs as is feasible. To accomplish this goal, the
LCR establishes requirements for CWSs and NTNCWSs. These systems must
conduct periodic monitoring and optimize corrosion control. In
addition, these systems must perform public education when the level of
lead at the tap exceeds the lead action level, treat source water if it
is found to contribute significantly to high levels of lead or copper
at the tap, and replace lead service lines in the distribution system
if the level of lead at the tap continues to exceed the lead action
level after optimal corrosion control has been installed.
In April 1996, EPA proposed a number of minor revisions to the LCR
(60 FR 16348, April 12, 1996). The proposed revisions do not affect the
lead and copper MCLGs, action levels, or basic regulatory requirements.
EPA proposed some of the minor revisions to streamline and reduce
regulatory burden where such changes can be made without jeopardizing
the level of public health protection or protection of the environment.
The Agency proposed other minor changes to clarify requirements and to
improve the rule's implementation. Finally, the Agency addressed two
issues that were the subject of a judicial remand. The April 1996
Proposal also requested comment on several provisions for which no
specific regulatory changes were proposed.
In an April 1998 Notice, the Agency published, and made available
for public review and comment, new data relating to two of the
provisions discussed in the April 1996 proposal and several additional
regulatory options that the Agency was considering (63 FR 20038, April
22, 1998). Finally, in August 1998, EPA requested additional public
comment on a refinement of one of the options discussed in the April
1996 Notice (63 FR 44214, August 18, 1998).
2. Overview of public comments received. EPA received approximately
900 comments from 97 commenters in response to the April 1996 Proposal.
With the exception of the proposed definition of ``control'' as it
applies to lead service line (LSL) replacement, commenters generally
supported the proposed minor revisions; however, many suggested
possible refinements of specific provisions. A few commenters also
expressed frustration that the proposed changes were ``too little'' and
``too late'' to benefit many systems. The Agency received comments from
30 commenters in response to the April 1998 Notice and 26 commenters
responded to the August 1998 Notice. Most of the commenters to the 1998
Notices supported the additional regulatory options in concept,
however, were concerned with the draft rule language discussed.
The comments pertaining to topics addressed in these Notices and
EPA's response are summarized by topic in sections B through F of this
preamble. The verbatim comments and EPA's responses to them are
contained in EPA's Response to Comments on the Lead and Copper Rule
Minor Revisions (EPA, 1999e).
3. Impacts on costs and benefits. Today's action does not affect
the treatment-related costs (e.g., capital improvements) associated
with the LCR. The revisions affect costs associated with the monitoring
and reporting requirements of the LCR, however, and these estimated
impacts have been calculated as part of the Information Collection
Request (EPA, 1999a) developed in support of today's action. These
impacts are discussed in section H.3. of this preamble.
As discussed in the April 1996 Proposal, the revisions in today's
action are not expected to change the level of public health protection
resulting from implementation of the lead and copper regulations. The
Agency therefore has not identified any quantifiable benefits
associated with today's action. EPA believes there should be some non-
quantifiable benefits, however, because improved implementation should
result in some health benefits being achieved sooner.
B. Continued Exclusion of Transient Non-community Water Systems
1. Overview and summary of Agency position. In the preamble to the
April 1996 Proposal, EPA noted that the Natural Resources Defense
Council (NRDC) had challenged the rule's exclusion of transient non-
community water systems (TNCWSs, also referred to as ``transient
systems'') on the grounds that persons served by these systems may be
at risk of non-carcinogenic adverse effects. The court granted the
Agency's request for a voluntary remand so that the Agency could
provide a more detailed justification of this exclusion.1 In
the April 1996 Proposal, EPA indicated that the Agency was collecting
additional information relevant to this issue and would make this new
information available for public review and comment prior to the
promulgation of a final rule. EPA also requested public comment
regarding the continued appropriateness of the exclusion, whether
modification of the current exclusion would be appropriate and, if so,
what alternative approaches are available for addressing those systems.
EPA included the new information in the April 1998 Notice and signaled
its preliminary conclusions that the new information does not resolve
significant data gaps or present a compelling argument to change the
Agency's policy of excluding TNCWSs from the provisions of the LCR.
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\1\ This issue was one of several issues included in legal
challenges to the 1991 Lead and Copper Rule brought by the American
Water Works Association (AWWA) and the Natural Resources Defense
Council (NRDC). (American Water Works Association, et al. v. EPA, 40
F.3d 1266 (D.C.Cir., 1994).
---------------------------------------------------------------------------
Eighteen commenters submitted comments on the appropriateness of
the continued exclusion in response to the April 1996 Proposal. All of
the commenters supported the continued exclusion. No new data were
submitted; however, most commenters cited reasons for continuing the
TNCWS exclusion. These reasons included: the absence of data suggesting
there are adverse health effects resulting from short-term exposure to
lead; the limited exposure that is likely to occur at transient
systems; the potential that subjecting transient systems to the rule's
requirements will cause many of them to close, with the possible
unintended consequence that consumers would utilize other, less
protected, sources of
[[Page 1955]]
drinking water (e.g., untreated lakes and streams in National Forests);
concern that the rule's monitoring and treatment requirements were not
appropriate for transient systems; and the tremendous added burden that
would be placed on limited State resources. EPA received 18 comments in
response to the April 1998 Notice. Only one of these commenters raised
concerns with the exclusion. This commenter recommended that TNCWSs,
except those meeting the materials criteria for monitoring waivers that
EPA proposed in 1996,2 should be required to monitor tap and
source water lead and copper levels at least once every nine years. The
commenter argued that transient systems, where the difference between
the source water and the tap water exceeds five (5) parts per billion
(ppb) lead, should not be excluded from the Rule's provisions. As
discussed in the following paragraph, EPA disagrees with this
commenter.
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\2\ See section C.5.l. of this preamble for a discussion of the
monitoring waiver provisions.
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After consideration of the additional information collected by the
Agency and the public comments received, EPA believes that it is
appropriate to retain the current exclusion. EPA believes that
maintaining the longstanding exclusion of transient systems from
coverage of the NPDWR for lead is warranted in light of the de minimis
risk of adverse health effects cited by NRDC as justification for
regulating these systems. Very high levels of lead have clinically
evident effects on the brain (acute encephalopathy). However, the
Agency was not able to identify any studies that demonstrate critical
neurochemical responses to short-term, moderate lead exposures. The
data on which the Agency based its health assessment for short term
exposures to lead came from studies by Cools et al, (1976), Schlegel
and Kufner, (1979) and Struik, (1974) which indicate that the most
likely adverse effect of the moderate levels of lead that might on
occasion be encountered at a TNCWS would be temporary suppression of
one of the enzymes responsible for the synthesis of hemoglobin, the
oxygen carrying protein in the blood. However, the data suggest that
there are no clinical effects of the enzyme suppression unless it
continues for a more extended exposure period than would typically
occur for persons who drink water at transient systems such as rest
stops, motels, gas stations and restaurants, which serve customers for
only short periods of time. Morever, EPA does not believe that even
those persons who may drink water from transient systems on a more
continuous basis (e.g., employees) would be at health risk given the
likely levels of lead to which they would be exposed.
2. Detailed discussion of rationale
a. Background. A public water system is classified as a community
water system if it has at least 15 service connections used by year-
round residents or if it regularly serves at least 25 year-round
residents. All other public water systems are non-community water
systems and are considered to be either ``non-transient'' or
``transient'' depending on the number of the same people regularly
served over 6 months of the year. A non-community water system that
does not regularly serve at least 25 of the same persons over 6 months
of the year is classified as a transient non-community water system.
Examples of transient systems include highway rest stops, gas stations,
and recreational facilities where fewer than 25 of the same individuals
consume the water over an extended period of time (i.e., at least six
months of the year). In addition, the vast majority of people who
consume water from such systems (i.e., customers and members of the
public who are at the facility) generally consume small quantities over
short periods of time.
EPA's longstanding policy is to exclude transient systems from
drinking water regulations except for those contaminants, such as
nitrate, that EPA believes have the potential to cause immediate
adverse human health effects resulting from short-term exposure. These
are known as ``acute contaminants'' because the adverse health effects
may occur after limited exposure. Other drinking water contaminants are
considered to be ``chronic contaminants'' because adverse effects on
human health generally have been associated with extended periods of
exposure. In the preamble to the final Phase I Rule, EPA explained that
the Agency does not believe it necessary to regulate water systems that
only serve transient populations for chronic contaminants because
exposure to these contaminants for only brief periods of time, such as
that which occurs at transient systems, does not pose a long-term
health risk (52 FR 25695, first column). For the reasons discussed in
the following section, EPA considers lead to be a chronic contaminant.
b. Occurrence and exposure at transient systems. In 1995, the
Environmental Quality Institute at the University of North Carolina at
Asheville conducted a survey to collect actual data on lead in drinking
water from transient systems in order to better characterize potential
exposure risks. Of 8,000 systems throughout the country invited to
receive free lead testing, 115 participated. The relatively small
number prevents conclusive analysis, although a fairly representative
range of system types across the country is included.
First draw (1-liter) and one-minute purged (30 milliliters) samples
were collected at each site. The median and average concentrations of
the first draw samples were relatively low (2.3 and 9.2 ppb,
respectively). Approximately 12 percent of the sites (13) exceeded the
action level of 15 ppb. The average one-minute purged sample was 2.3
ppb, with a 90th percentile of 3.4 ppb. The purged samples had much
lower concentrations (75% lower on average) and less variable readings
than the first draw samples. The maximum value reported from all
sampling was 229 ppb. The flushed sample for this sampling site had a
value of 0.7 ppb, raising the distinct possibility that the results of
the first sample may have been the result of sampling error such as
contamination of the sample. (EPA, 1995c).
While extensive information is not currently available, EPA
believes that the results of the University of North Carolina survey
indicate generally that the levels of lead in transient systems are not
dissimilar to the levels found in non-transient systems. With both
transient and non-transient systems, it appears that the levels of lead
are associated strongly with the length of time that the water has been
standing in household plumbing prior to use.
c. Health effects of lead. Lead is considered a chronic contaminant
that impairs and damages the nervous system and other systems or
processes after extended periods of exposure. Lead toxicity is believed
to be a function of repeated exposures over time that result in a
gradual accumulation of lead in the soft tissues and the skeleton. Lead
moves from its storage sites to the blood resulting in adverse effects
even after exposures have diminished.
The Agency decision to exclude TNCWSs from the LCR is supported by
toxicological data from studies in adults which identified increased
concentrations of erythrocyte protoporphrine and depressed activity of
aminolevulinic acid dehydratase as the critical effects from short-term
lead exposures (Cools et al., 1976; Schlegel and Kufner, 1979; Struik,
1974). These effects are markers for inhibition of heme synthesis
(ATSDR, 1998; Hindmarsh, 1986). Aminolevulinic acid dehydratase is the
key enzyme regulating the rate of heme synthesis and erythrocyte
protoporphrine is a
[[Page 1956]]
precursor to heme and, thus, a biomarker for heme production. Heme is
the iron containing component of hemoglobin, the oxygen-carrying
pigment in red blood cells.
A study by Struik (1974) demonstrated the effects of short-team
lead exposure on heme synthesis in adults. Two groups of 5 women and
one group of 5 men were orally administered 1.4 or 2.1 mg/day lead in
the form of lead acetate for three weeks. Suppression of the activity
of erythrocyte aminolevulinic acid dehydratase became apparent by the
third day of exposure. The degree of suppression increased until day 14
and then remained constant for the remainder of the study. Effects on
erythrocyte protoporphrine were noted in the women but not the men
after 2 weeks of exposure. Blood lead levels had increased to 40
g/dL or higher before effects on erythrocyte protoporphrine
were noted. The effects on aminolevulinic acid dehydratase and
erythrocyte protoporphrine are reversible and do not persist after
exposure has ceased. A short term deficit in heme production is not
immediately manifest in a decreased supply of red blood cells. The
average red cell remains in circulation for about 120 days and
physiological controls on their turnover insure that there is a
continuous replacement of aging and damaged cells (Montgomery et al.,
1990). Therefore, a short term deficit in heme production will not
immediately cause anemia or diminish the oxygen transporting properties
of the blood. Moreover, the lead levels used in this study were several
orders of magnitude greater than the median lead levels observed in
TNCWSs in the University of North Carolina study (EPA, 1995c).
As discussed above, there is very limited information that can
assist in estimating the levels of lead that may be of concern due to
short-term exposures from drinking water. Because of the limited data
EPA does not believe that it is possible to develop guidance at this
time. However, based on the data that are available, from the Struik
study, EPA estimates that average, short-term, lead exposures would
have to exceed 500 ppb for adults and 60 ppb for infants or children
and would have to persist for an extended period of time to cause even
a transient effect on the oxygen carrying capacity of the blood (EPA,
1998b). The value for infants is lower than that for adults because
infants are able to absorb greater amounts of lead from the
gastrointestinal track. In the University of North Carolina study, the
average first draw sample was less than 10 ppb, and the average fully
flushed sample was approximately 2 ppb. The 90th percentile value of
first draw samples was 20 ppb, and the 90th percentile fully flushed
sample was approximately 3 ppb. Taking into account the available data
regarding acute exposures to lead at TNCWSs, EPA does not believe there
is any significant risk that exposures through drinking water at the
concentrations monitored would result in adverse acute health effects
among users of transient systems, including infants and children.
d. Objections to the exclusion
As noted above, all but one commenter during this rulemaking
supported maintaining the exclusion of transient systems. In its
comments on the original rule--and in subsequent litigation--NRDC
argued that EPA's exclusion of transient systems from the rule was both
inconsistent with the SDWA and not justified by the science. According
to NRDC, the Act mandates that NPDWRs apply to all PWSs without
exception, and therefore EPA lacks the authority to fashion a de
minimis exclusion for transient systems. NRDC also argued that, even if
EPA had the legal authority to exclude transient systems, lead causes
acute adverse health effects from short-term exposure, and that
employees of transient systems would be at risk from longer term
exposures.
EPA first disagrees that the SDWA does not permit the Agency to
fashion an appropriate de minimis exclusion for transient systems from
regulation of contaminants like lead. It is the exceptional case in
which an agency does not possess such authority. In Alabama Power Co.
v. Costle, 636 F.2d 323 (D.C. Cir. 1979), the D.C. Circuit reviewed
EPA's decision to create a de minimis exclusion under the Clean Air
Act. The court stated that, ``[u]nless Congress has been
extraordinarily rigid, there is likely a basis for an implication of de
minimis authority to provide exemption when the burdens of regulation
yield a gain of trivial or no value.'' 636 F.2d at 360-361. EPA does
not believe that the SDWA falls within the very narrow class of
statutes that precludes fashioning appropriate exclusions for
activities with de minimis impact.
Congress has in numerous respects accorded EPA substantial
flexibility in focusing implementation on areas of cognizable public
health risks. Indeed, such flexibility was a theme of the most recent
comprehensive amendments to the Act in 1996. A major impetus for this
legislation was the ``need for a more streamlined and flexible approach
to controlling drinking water contamination consistent with continued
protection of public health.'' House Report 104-632, 104th Cong., 2d
Sess., at 8. For example, Congress was concerned that the 1986
amendments to the Act required EPA to regulate 25 new contaminants
every three years, a requirement that had ``imposed significant burdens
at the State, local and Federal level, and have led to questions about
whether the Act is focused on the most significant risks to public
health.'' Id. at 9. In numerous ways, the 1996 amendments reflected
Congress' desire for EPA to focus its efforts taking into account risks
to public health, as well as the benefits and costs involved in setting
standards under the Act. See, e.g., SDWA section 1412(b)(1)(C)
(directing EPA to prioritize selection of contaminants for regulation
based on consideration of those ``that present the greatest public
health concern''); sections 1412(b)(3) and (b)(6) (directing EPA to
consider information regarding the incremental costs and benefits in
establishing NPDWRs). While none of these amendments addressed the
precise question of what PWSs must be covered by NPDWRs, in light of
Congress' overall concern with encouraging flexibility and priority-
setting in the Act's implementation, EPA does not believe it is logical
or sensible to conclude that Congress intended to deprive EPA of its
inherent administrative authority to fashion appropriate de minimis
exclusions from the Act's requirements where negligible risks are
present. Moreover, EPA's policy of excluding transient systems from
NPDWRs for contaminants posing chronic health risks has been in place
for over a decade. At no time during this period has Congress sought to
modify EPA's approach.
NRDC has also contended that, even if EPA has the legal authority
to create a de minimis exclusion, EPA's decision was unlawful because
lead does pose non-carcinogenic adverse health effects from short-term,
acute exposures. EPA believes that this contention is based on
misunderstandings by NRDC of several factors. NRDC's claim that lead is
an acute contaminant was based on information from three reports: The
National Academy of Sciences (NAS) report, Drinking Water and Health
(1982), a study of lead exposure in infants, and EPA's recommendation
regarding lead in school drinking water fountains. The Agency disagrees
with NRDC that these citations support classification of lead as an
acute contaminant. The Agency's conclusions
[[Page 1957]]
are discussed in the following paragraph.
NRDC's reference to the NAS (1982) report on Drinking Water and
Health focused on the ``maximum daily exposure recommendations for
children'' cited in that report. The NAS report cites Mahaffey (1977)
who recommended that lead intake for children less than 6 months of age
should be no more than 100 g/day and the intake for children
between 6 months and 2 years of age should be no more than 150
g/day. These values would translate to 100 ppb and 150 ppb,
assuming a daily water intake for children of 1 liter per day and no
exposure from other sources. Mahaffey (1977) concluded that water
containing 50 ppb lead would not be a hazard to infants and children
when other lead exposures were minimized. These values were derived
based on an assumption of chronic exposure, not short-term exposures
similar to those that would occur at a TNCWS and, thus, are not
relevant. In fact, NAS determined that there were ``no adequate data to
derive health-based guidelines for acute exposures, i.e. a 24-hour or a
7-day `Suggested No-Adverse Response Level'.''
In its comments on EPA's prior rulemaking, NRDC cited a study by
Shannon and Graef (1992) which they claimed showed that for 15 percent
of the lead poisoned infants at one clinic, the primary source of the
lead was infant formula made with drinking water. This is not quite
what the authors reported. Although formula preparation with lead-
contaminated water was the apparent cause for elevated blood lead
levels in 9 of 50 children (18%), lead in unboiled, ``first draw''
water was the problem for only one case (2%). Excessive boiling of
contaminated tap water for formula preparation was the problem in 5
cases (10%) and use of a leaded vessel for the heating of the water
(tap or spring) was the problem for the other three cases (6%). In
analysis of formula samples, lead concentrations as high as 200,000 ppb
were detected, values far greater than the levels observed at transient
facilities. The blood lead levels of the children exposed through
formula were similar to those children exposed through other routes
(paint chips, household renovation), but hemoglobin and red cell
volumes were lower indicating that the exposures had been chronic
rather than acute.
Finally, NRDC claims that the reason that the EPA recommends that
any school drinking water outlets that are found to have more than 20
g/L lead in a 250 mL sample be removed from service is to
protect against acute health risks to young children. This is
incorrect. The Agency developed that policy to protect children who are
exposed to lead in drinking water on a chronic, not acute, basis.
NRDC has also argued that transient systems should not be excluded
from regulation because frequent users of these systems, such as
employees, could be exposed to lead in the drinking water over an
extended period of time. Such persons could include pregnant women and
children, who are particularly vulnerable to adverse effects of chronic
lead exposure. While such users may consume water from the same system
repeatedly, EPA does not share NRDC's concern that such persons can
realistically be said to be at risk of adverse health effects from
exposure to lead. As explained in detail in EPA's 1991 rulemaking,
levels of lead at the tap correlate with the length of time that water
has been sitting motionless in plumbing materials containing lead. The
longer the water sits, the more likely lead will leach from lead-
bearing plumbing materials into the water. Typically, the highest
levels of lead in the water are contained in the first liter from the
tap after the water has been sitting for some time. In order to have
the best understanding of the extent to which corrosivity of the water
is causing leaching of lead, the LCR requires that sampling be done
with such ``first flush'' water after the tap has not been used for at
least six hours. This sampling protocol was designed to ensure that the
water system had the benefit of the best information regarding the
extent to which water chemistry was interacting with lead-bearing
materials to cause leaching into drinking water, and also recognized
that some users could, under some scenarios, repeatedly drink first
flush water.
However, transient systems such as restaurants and gas stations by
their nature would serve a large number of persons throughout the day.
The vast majority of the users are, in fact, ``transient.'' In
addition, the nature of these facilities would mean that taps are in
fairly constant use, reducing the likelihood of lead leaching into
standing water. Also, given the types of populations served by
transient systems, we would anticipate that it would be extremely
unlikely that the same persons would repeatedly be exposed to the water
that has been sitting for an extended period of time. Data collected by
EPA regarding occurrence of lead in transient systems suggests that
even frequent users are not at risk. Since it is unlikely that the same
persons would repeatedly be exposed to ``first flush'' water in these
systems, the vast majority of water would consist of fully flushed
water. The median level of lead in running water in transient systems
found by the University of North Carolina (EPA, 1995c) survey was 0.7
ppb, and the average level was approximately 2 ppb. The median first
flush level was approximately 2 ppb, and the average level was 9 ppb,
levels below those of health concern. Thus, information collected by
EPA strongly supports its conclusion that there are only de minimis
risks in transient systems from exposure to lead.
Given the de minimis risks posed by lead in these systems, EPA
continues to believe that excluding these systems from the lead NPDWR
is appropriate. EPA believes, in fact, that including them within the
regulation could even have the unintended effect of harming public
health. In the face of monitoring and treatment requirements for lead,
EPA anticipates, based on the public comments received and other
anecdotal data, that many transient systems will opt to stop providing
water rather than to assume the extra burden of the rule's
requirements. This would leave consumers in the position of finding
their own alternative source of drinking water. In some cases, the
alternative source may be less protective of public health than the
transient system. For example, if National or State parks were to no
longer provide drinking water, visitors may drink untreated water
directly from nearby lakes, rivers and streams.
C. Revisions to 40 CFR 141, Requirements for Public Water Systems
1. Revisions to Sec. 141.81
a. Clarification of the requirement to install and maintain
operation of optimal corrosion control. (i) Proposed revision and
background. In the April 1998 Notice, EPA requested comment on possible
revisions to the regulatory language of Sec. 141.81(b) and the first
sentence of Sec. 141.82(g) to clarify that all water systems are
required to operate and maintain optimal corrosion control even if
there are no specific Federal requirements for the system to monitor
for water quality parameters (WQPs). As EPA explained in that Notice,
there are several ``pathways'' by which systems may be considered to be
optimized. Many, but not all, require that corrosion control treatment
(CCT) be physically installed. The Agency is concerned that some
systems deemed to be optimized pursuant to Sec. 141.81(b) may
misinterpret the absence of specific Federal controls in the regulatory
language as meaning that they have
[[Page 1958]]
license to ``turn off'' or depart from optimal corrosion control
treatment (OCCT) between Federally-prescribed monitoring periods.
(ii) Comments and analysis. With one exception, commenters
supported the proposed clarification. The one commenter who objected to
the proposed clarification argued that it is not necessary since his
State already had established such controls. EPA believes clarification
is appropriate. The Agency notes that while most States have reasonable
process controls in place to assure consistent and proper operation of
CCT, some do not. EPA believes that it is appropriate to clarify that
all systems are expected to maintain optimal corrosion control even if
they are not subject to Federally-prescribed WQP monitoring.
Several commenters predicated their support on the presumption that
States would retain flexibility to determine the specific nature of the
process controls for (b)(1) and (b)(3) systems. EPA agrees that such
flexibility is appropriate. Today's action, therefore, does not
prescribe specific operating requirements for water systems to meet the
criteria of Sec. 141.81(b)(1) or (b)(3).
A few commenters expressed concern that the proposed language
changes would preclude a (b)(1) or a (b)(3) system from ever changing
its treatment once it has been deemed to be optimized. EPA recognizes
that water systems need to make treatment changes, on occasion, to
react to changing circumstances (e.g., new requirements, changes in
source water quality, and changes in the distribution system). Nothing
in today's action is intended to prevent a State from approving
treatment changes when they are warranted and appropriate. Rather, the
intent of today's action is to ensure that any such treatment changes
are consistent with the Rule's goal of minimizing levels of lead and
copper at the tap to the maximum extent practicable. The Agency
believes the phrase ``and meet any requirements that the State
determines appropriate to ensure such treatment is maintained''
provides States sufficient flexibility to approve appropriate treatment
changes that may be warranted by emerging conditions at the water
system.
One commenter requested that EPA clarify in the rule language that
(b)(2) systems are not required to have CCT physically present. EPA
disagrees that this is appropriate. Section 141.81(b)(2) applies only
to those water systems that completed corrosion control steps
equivalent to those specified in Sec. 141.81(d) or (e) before the
effective date of the LCR. The Agency's intent is to relieve such
systems of the need to repeat those steps merely to comply with the
Rule's milestones. Assuming a water system had completed an equivalent
corrosion control study and installed appropriate CCT prior to the
effective date of the Rule, EPA believes the Rule is clear that
additional treatment may not be warranted if the State believes the
system's CCT already is optimized. For large water systems,
Sec. 141.81(b)(2) does not eliminate the need to have any CCT in place,
unless the water system can demonstrate to the satisfaction of the
State that such treatment will have no effect on reducing the levels of
lead and copper at the tap. Merely meeting the lead and copper action
levels is not a sufficient test for large systems since the Rule
requires these systems to reduce corrosion to the maximum extent
possible to be considered optimized. EPA expects few, if any, large
water systems can make this demonstration without CCT.
(iii) Today's action. After considering the comments received, the
Agency has decided to promulgate the revisions to Sec. 141.81(b) and
the first sentence of Sec. 141.82(g) as follows. The introductory text
of Sec. 141.81(b) has been revised to read: ``A system is deemed to
have optimized corrosion control and is not required to complete the
applicable corrosion control treatment steps identified in this section
if the system satisfies one of the criteria specified in paragraphs
(b)(1) through (b)(3) of this section. Any such system deemed to have
optimized corrosion control under this paragraph, and which has
treatment in place, shall continue to operate and maintain optimal
corrosion control treatment and meet any requirements that the State
determines appropriate to ensure optimal corrosion control treatment is
maintained.'' The first sentence (following the paragraph title) of
Sec. 141.82(g) has been revised to read: ``All systems that have
installed treatment optimizing corrosion control shall continue to
operate and maintain optimal corrosion control treatment, including
maintaining water quality parameters at or above minimum values or
within ranges designated by the State under paragraph (f) of this
section, in accordance with this paragraph for all samples collected
under Secs. 141.87(d)-(f).''
This revision necessitates a change to the State recordkeeping
requirements in Part 142. A requirement has been added as a new
Sec. 142.14(d)(8)(i) 3 to require States to retain records
of any conditions imposed by the State on specific water systems deemed
to be optimized under Sec. 141.81(b)(1) or (b)(3) to ensure the
continued operation and maintenance of treatment in place.
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\3\ As discussed in Section D.1. of this preamble, today's
action renumbers existing paragraphs of Sec. 142.14(d)(8).
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These wording changes make clear the Agency's intent in the 1991
Rule that all systems operate and maintain optimal corrosion control.
They do not add any new requirements.
b. Water systems deemed to be optimized pursuant to
Sec. 141.81(b)(2).
(i) Proposed revision and background. In the April 1996 Proposal,
EPA requested comment on a regulatory option that would result in minor
wording changes to the language of Sec. 141.81(b)(2) to clarify that
systems deemed to have optimized corrosion control pursuant to that
paragraph are required to continue WQP monitoring after State
designation of optimal water quality parameters (OWQPs). The Agency
proposed this change to eliminate possible confusion about monitoring
requirements after the installation of CCT for these systems.
(ii) Comments and analysis. EPA received several comments on the
proposed clarification. None of the commenters opposed the proposed
revision, however, one commenter raised concerns about how the
requirement would be applied in those instances where no treatment is
installed. The commenter also noted that the requirement to monitor
WQPs at every entry point could be onerous at such a system,
particularly if it were a ground water system with many wells. EPA
developed the Sec. 141.81(b)(2) optimization criteria to address those
water systems that had both completed a corrosion control study
comparable to that required by the LCR and installed an appropriate CCT
process prior to the Rule's schedule. To be comparable, the study would
have had to include an evaluation of the three corrosion control
options--pH and alkalinity adjustment, calcium hardness adjustment, and
inhibitor addition. This study also would have had to use some of the
testing methods specified in the Rule to evaluate the options. EPA
believes that studies that meet the Sec. 141.81(b)(2) requirements
would indicate that the installation of a CCT process was warranted and
that it is therefore appropriate to require (b)(2) systems deemed to be
optimized pursuant to Sec. 141.81(b)(2) to meet State-designated OWQPs.
EPA recognizes that it may not be necessary to install treatment at
every entry point, however, especially at ground water systems. As
discussed in section C.6.b. of this preamble, EPA also
[[Page 1959]]
is making a change to Sec. 141.87(c)(3) that will allow ground water
systems to limit entry point WQP sampling to those entry points that
are representative of water quality and CCT throughout the system. This
provision means that a ground water system deemed to be optimized
pursuant to Sec. 141.81(b)(2) may be able to reduce--but not eliminate
entirely--the number of entry point WQP samples that must be collected.
(iii) Today's action. EPA therefore is revising Sec. 141.81(b)(2),
as proposed, by inserting a sentence after the second sentence in
Sec. 141.81(b)(2) to clarify WQP monitoring requirements for systems
deemed to have optimized corrosion control. The inserted sentence
reads: ``Water systems deemed to have optimized corrosion control under
this paragraph shall operate in compliance with the State-designated
optimal water quality control parameters in accordance with
Sec. 141.82(g) and continue to conduct lead and copper tap and water
quality parameter sampling in accordance with Sec. 141.86(d)(3) and
Sec. 141.87(d), respectively.''
c. Water systems deemed to have optimized corrosion control under
Sec. 141.81(b)(3).
(i) Copper action level requirements.
(A) Proposed revision and background. In 1996, EPA proposed that
water systems demonstrating, pursuant to Sec. 141.81(b)(3), that very
little lead corrosion is occurring in the distribution system (i.e.,
(b)(3) systems) be required to meet the copper action level. The Agency
proposed such a requirement to correct an oversight in the 1991 Rule.
(B) Comments and analysis. EPA received mixed comments on this
proposed change. Several commenters viewed the revision as a new
requirement that could lead to treatment modifications in some systems.
In the preamble to the proposed rule, EPA acknowledged that a few
systems may be triggered into CCT because of the requirement that
(b)(3) systems meet the copper action level. EPA agrees that there will
be additional costs incurred by the systems if installation/
modification of CCT processes are necessary. The goal of the LCR,
however, is to minimize the risk from both lead and copper. EPA
believes that this change is appropriate to better conform with the
stated goal of the LCR. The copper action level is equivalent to the
copper MCLG, so adverse health effects from copper should be avoided if
systems meet the action level. Since (b)(3) systems that do not meet
the copper action level are not triggered into CCT processes until 18
months after the LCRMR is published in the Federal Register, (b)(3)
systems that exceeded the copper action level during the initial rounds
of monitoring have time to make changes to reduce copper levels before
being triggered out of (b)(3) status.
(C) Today's action. In addition to the 1991 (b)(3) criteria,
today's action prevents systems that exceeded the copper action level
on or after July 12, 2001, from being considered to be a (b)(3) system.
This requirement is specified at Sec. 141.81(b)(3)(iv).
(ii) Routine monitoring for lead and copper at the tap.
(A) Proposed revision and background. EPA proposed to correct
another oversight in the 1991 Rule by requiring (b)(3) systems to
continue routine monitoring for lead and copper at the tap at least
once every three calendar years (triennially) at the reduced number of
sites specified in Sec. 141.86(c). This proposed revision included a
start date for resumption of monitoring no later than the first full
summer (i.e., June through September time frame) after the effective
date of the revision.
(B) Comments and analysis. Commenters generally supported the
reduced monitoring frequency; however, several preferred less frequent
monitoring cycles, such as once every six or nine years. EPA disagrees
with the commenters who advocate monitoring less frequently than once
every three years for (b)(3) systems. Large systems comprise most, if
not all, of the (b)(3) systems because most small and medium-size
systems that satisfy Sec. 141.81(b)(3) criteria can also meet the less
onerous criteria of Sec. 141.81(b)(1) that do not require source water
monitoring. Since (b)(3) systems are not required to monitor their
corrosion control process using WQPs, lead and copper tap monitoring is
the only mechanism for determining whether levels of lead and copper at
the tap remain low. For this reason, EPA does not believe that
monitoring should be less frequent than once every 3 years for these
systems.
EPA also received comments on the proposed deadline for the
resumption of monitoring. As proposed, (b)(3) systems would have been
required to resume monitoring the first full June through September
after publication of the LCRMR. This requirement would apply only to
those (b)(3) systems that had not monitored during the three years
immediately preceding promulgation of the LCRMR. Several commenters did
not realize that the schedule for the resumption of monitoring would
not apply to those (b)(3) systems that already are monitoring regularly
and that have conducted at least one round of monitoring in the past
three years.
(C) Today's action. EPA has added provisions at
Sec. 141.81(b)(3)(ii) pertaining to the routine monitoring requirement
in today's action. The proposed requirement that routine lead and
copper tap water monitoring occur at least once every three years has
been retained. The Rule language has been clarified to indicate that
those (b)(3) systems that have conducted a round of standard or reduced
monitoring after September 30, 1997, may continue monitoring at the
reduced number of sites every three years based on the date of their
most recent monitoring. All other (b)(3) systems must conduct a round
of tap water monitoring for lead and copper no later than September 30,
2000.
(iii) State discretion to impose additional requirements.
(A) Proposed revision and background. The April 1996 proposed
revision to Sec. 141.81(b)(3) states: ``The State may require any
system deemed to have optimized corrosion control pursuant to this
paragraph to conduct additional monitoring or to take other action the
State deems appropriate to ensure that such systems maintain minimal
levels of corrosion in the distribution system (e.g., if there is a
change in treatment or a new source is added).'' EPA proposed this
provision to provide States sufficient flexibility to require
additional actions in those cases where such actions are necessary to
ensure the system maintains minimal corrosion in the distribution
system.
(B) Comments and analysis. Several commenters raised concern that
this provision could require (b)(3) systems to conduct lead and copper
tap sampling whenever treatment changes or a new source is added. The
decision to require additional monitoring will be made by the State
only after considering the impact of the treatment change or addition
of a new source on the corrosion control process. The rule does not,
and is not intended to categorically require monitoring when treatment
changes are made. The additional monitoring is not limited to lead and
copper monitoring. The State could require WQP monitoring and/or source
water monitoring instead of, or in addition to, lead and copper tap
monitoring.
(C) Today's action. EPA has included the following provision at
Sec. 141.81(b)(3)(iii). ``Any water system deemed to have optimized
corrosion control pursuant to this paragraph shall notify the State in
writing pursuant to Sec. 141.90(a)(3) of any change in treatment or the
addition of a new source. The
[[Page 1960]]
State may require any such system to conduct additional monitoring or
to take other action the State deems appropriate to ensure that such
systems maintain minimal levels of corrosion in the distribution
system''. EPA also has added a corresponding State recordkeeping
requirement in a new Sec. 142.14(d)(8)(ix).
Section C.5.j. of this preamble describes the reporting
requirement, and EPA's rationale for adding it, in more detail. While
the proposed revised Sec. 141.81(b)(3) rule language did not explicitly
require (b)(3) systems to notify the State when a new source is added
or changes in water treatment occur, the requirement was implicit in
the proposed reporting requirement for any system subject to a reduced
lead and copper tap water monitoring frequency. Today's action
clarifies that (b)(3) systems are included in this category.
(iv) Systems triggered into corrosion control.
(A) Proposed revision and background. Because it would no longer be
possible for large water systems newly triggered into CCT requirements
to meet the date-specific milestones of the 1991 Rule, EPA proposed in
1996 that any system triggered into CCT steps because it no longer
meets the Sec. 141.81(b)(3) criteria comply with the treatment step and
deadline requirements of Sec. 141.81(e) with any such large system
adhering to the schedule specified in that paragraph for medium-size
systems.
(B) Comments and analysis. EPA did not receive any comments
objecting to this provision.
(C) Today's action. Section 141.81(b)(3) has been revised to add a
provision at Sec. 141.81(b)(3)(v) requiring any system triggered into
CCT steps because it no longer meets the Sec. 141.81(b)(3) criteria to
comply with the treatment steps and deadline requirements in
Sec. 141.81(e). Any such large system shall adhere to the schedule
specified in that paragraph for medium-size systems.
(v) Difference between source water lead concentrations and 90th
percentile lead levels.
(A) Proposed revision and background. The April 1996 Proposal did
not include any changes to the 1991 criterion that allowed water
systems to demonstrate that the difference between the highest source
water lead concentration and the 90th percentile lead tap level is less
than the Practical Quantitation Level (PQL) for lead. Nevertheless, one
commenter suggested that EPA modify the lead criterion of
Sec. 141.81(b)(3) because, as written, a system with very low 90th
percentile lead levels and undetectable source water lead levels may be
precluded from becoming a (b)(3) system.
(B) Comments and analysis. EPA agrees with the commenter. Section
141.89(a)(3) requires that all measurements below the Method Detection
Limit (MDL) be reported as zero, whereas measurements between the MDL
and the PQL of 0.005 mg/L may be reported as one-half the PQL (0.0025
mg/L). A system with source water lead levels just below an MDL of
0.001 mg/L and a 90th percentile tap level of 0.005 mg/L would not be
deemed to be optimized using the 1991 (b)(3) criteria which requires
the difference to be less than 0.005 mg/L. In this example, the
difference would be 0.005 mg/L (i.e., 0.005 mg/L-0mg/L=0.005 mg/L). On
the other hand, assuming a lead MDL of 0.001 mg/L, a system with source
water lead levels of 0.0011 mg/L and a 90th percentile of 0.006 mg/L
would be considered to be optimized under the 1991 (b)(3) criteria
since the source water levels could be reported as 0.0025 mg/L. In this
example, the difference would be 0.0035 mg/L (i.e., 0.006 mg/L-0.0025
mg/L=0.0035 mg/L).
(C) Today's action. Therefore, EPA is making a slight revision to
Sec. 141.81(b)(3) to address the problem. The following provision has
been added as Sec. 141.81(b)(3)(i): ``Those systems having source water
lead levels below the Method Detection Limit may also be deemed to have
optimized corrosion control under this paragraph if the 90th percentile
tap water lead level is less than or equal to the Practical
Quantitation Level for lead for two consecutive 6-month monitoring
periods.''
2. Revisions to Sec. 141.82
a. Clarification of requirement to operate and maintain optimal
corrosion control. As discussed in section C.1.a., EPA is revising the
first sentence of Sec. 141.82(g) to clarify that all systems deemed to
have optimized corrosion control pursuant to Sec. 141.81(b) are
required to continuously operate and maintain any installed CCT
properly.
b. Excursions from State-designated optimal water quality parameter
ranges or values.
(i) Proposed revision and background. In the April 1998 Notice, EPA
requested public comment on a regulatory option that would revise the
way in which compliance with State-designated OWQPs is determined under
Sec. 141.82(g). Under the 1991 Rule, a water system would be out of
compliance with the requirements of Sec. 141.82(g) if the results of
any WQP sample were below the minimum value or outside the range of
values designated by the State under Sec. 141.82(f). Systems could take
a confirmation sample within three days of the original sample,
however. If such a confirmation sample were taken, the results of the
original sample and the confirmation sample were to be averaged to
determine compliance. Several commenters responding to issues raised in
the 1996 Proposal expressed concern about this method of determining
compliance. These commenters, while advocating frequent WQP sampling,
noted that the Rule's approach for determining compliance creates a
significant disincentive for sampling more frequently than required,
since the more frequently measurements are taken, the greater the
potential that some of the results will be outside the State-specified
limits. These commenters urged EPA to adopt a percentage-based approach
to determining compliance.
The April 1998 Notice contained a regulatory option that would
replace the confirmation-sample concept with a repeat-sample concept.
Under the repeat-sample concept, a water system whose initial
monitoring results were below the minimum value or outside the range of
values designated by the State could take a repeat sample within three
days of the original sample. If taken, the results of the repeat sample
would be used to determine compliance under Sec. 141.82(g); otherwise,
the results of the original sample would be used.
In the August 1998 Notice, EPA sought public comment on a
refinement of the repeat-sample concept in order to better address
issues associated with measuring WQPs more frequently than once a day.
Under the refined option, compliance with Sec. 141.82(g) would be
determined quarterly. To be in compliance for the quarter, a water
system would need to be in compliance for each applicable WQP at each
sampling location at which that WQP is measured during the quarter. The
method of determining compliance for a WQP at a sampling location would
depend on the frequency with which that parameter is measured at that
sampling location during the quarter. Where the measurements are taken
once a day or less often, compliance would be determined using a
repeat-sample approach similar to the one described in the April 1998
Notice. That is, if the result of any measurement is below the minimum
value or outside the range designated by the State under
Sec. 141.82(f), the system may take a repeat sample within 72 hours of
the original
[[Page 1961]]
sample; if a repeat sample is taken, those results would be used to
determine compliance, otherwise the results of the original sample
would be used. For sampling locations where the parameter is measured
more frequently than once a day, a system would be in compliance with
the requirements of Sec. 141.82(g) so long as at least 95 percent of
the measurements taken for the parameter at the sampling location
during the quarter are within the State-designated limits and no single
excursion lasts more than 72 hours. In those instances where monitoring
is continuous, systems would be required to record the results at least
every four hours and to use the recorded results for determining
compliance. Finally, the August 1998 option also would revise the
reporting requirements at Sec. 141.90(a)(1) to clarify that systems
would be required to report to the State on a quarterly basis, all
water quality parameter results collected during the quarter, unless
the State specified a more frequent reporting schedule.
(ii) Comments and analysis. While commenters responding to the
April 1998 Notice thought the repeat-sample approach represented an
improvement over the confirmation-sample approach, most expressed
concern that the repeat-sample approach did not eliminate the
disincentives for frequent monitoring or the problems in determining
compliance that would occur when WQPs were measured more frequently
than once a day. These commenters continued to urge EPA to allow a
percentage-based approach, at least in those instances where WQPs are
measured frequently.
Most commenters to the refined approach discussed in the August
1998 Notice expressed support for a percentage-based approach; however,
many disagreed with some of the specific provisions proposed. Several
commenters, for example, advocated using a lower percentage than that
proposed by the Agency as the basis for determining compliance with the
requirements of Sec. 141.82(g). A number of commenters suggested that
90 percent would be more appropriate since lead and copper action level
exceedances are determined based on the 90th percentile lead and copper
tap water values. Other commenters supported the use of 90 percent
because of system-specific or uncontrollable factors that may affect
water quality. They argued that, if 10 percent, or more, of the water
quality measurements were allowed to be outside OWQP limits, the State
would tend to set narrower OWQP ranges than in those instances where 95
percent of the results were required to be within the State-specified
OWQP limits. A few commenters suggested that EPA allow States the
flexibility to determine the percent of samples that must be within
acceptable levels.
EPA believes setting the performance measure at 95 percent is
appropriate. Today's action adopts a percent-of-time approach to
determining compliance. If the performance measure were set at 90
percent, for example, a water system could be out of compliance with
WQP requirements for more than 18 days in a six-month period or 36 days
in a twelve-month period. The Agency does not believe that allowing
this much deviation from OWQPs provides adequate levels of public
health protection. Since States will have the results of the two 6-
month rounds of follow-up monitoring after the installation of
corrosion control before designating OWQPs, the Agency believes it is
reasonable for States to set OWQPs that water systems should be able to
maintain at least 95 percent of the time. The Agency also believes that
determination of OWQP compliance (intended to demonstrate proper
operation and maintenance of a treatment process) is not sufficiently
analogous to determination of action level exceedances (intended to
indicate a need for treatment) to justify the use of the same
percentage for both just to maintain consistency in the calculations.
No commenter objected to using a percentage-based approach for
water systems that measure WQPs more than once per day. Many commenters
advocated use of the percentage approach for systems that collect daily
samples and some advocated using the percentage approach across-the-
board for the sake of simplicity. EPA agrees that it is reasonable for
a single approach to be used when determining compliance, as long as
the approach can accommodate large variations in sampling frequency. To
maintain reasonable fairness between systems that collect entry point
measurements biweekly and those that collect entry point measurements
several times a day, the Agency has adopted the suggestion made by
several commenters to shift from a percent-of samples calculation to a
percent-of-time calculation. EPA also has revised the compliance-
determination period from quarterly to every six months. To remain in
compliance, a water system may have no more than nine days during a
six-month monitoring period when any excursions occur (or persist).
This corresponds to having no excursions approximately 95 percent of
the time. Where a system measures a parameter several times a day at
the same location, the daily value for the purposes of determining
compliance with Sec. 141.82(g) will be calculated by averaging all
results collected during the day unless EPA has approved an alternative
formula under Sec. 142.16(d)(1)(ii) in the State's application for a
primacy revision.
A few commenters also disagreed with the approach outlined in the
August 1998 Notice that would require each sampling location to be in
compliance in order for the system to be considered in compliance. The
Agency disagrees that aggregating the results from all sampling
locations before determining whether or not an excursion has occurred
provides sufficient health protection. Aggregating the results from
multiple locations could mask a problem that affects only a part of the
system. EPA has therefore retained the requirement that excursions be
determined for each WQP and sampling location.
Some commenters raised concern over the requirement that repeat
samples be collected within 72 hours of the original sample. These
commenters noted that it might not be possible to make necessary
adjustments within 72 hours, particularly if the problem occurs just
before a weekend or holiday and the system is unable to obtain a
necessary part for several days or if several days are necessary before
the effects of treatment changes are apparent at distribution system
monitoring sites. EPA believes the modified approach for determining
compliance in today's action will provide some relief to those systems
that need several days to effect necessary repairs. At the same time,
the Agency believes it is essential to minimize excursion durations to
the maximum extent possible. One study, for example, suggests that
disruptions of four to five days in CCT may potentially affect levels
of lead at the tap adversely (Colling, et al., 1992). The Agency has no
data that suggest the impact on copper levels would be any different.
The Agency believes it is appropriate, therefore, for those systems
with chronic equipment problems to develop and implement appropriate
sampling schedules and contingency plans to minimize possible ``down''
time. Since the LCR does not require frequent sampling at distribution
system tap locations, the Agency believes systems should have
sufficient flexibility to avoid sample collection at these locations
during times of known equipment problems or other factors not
representative of normal operations.
Today's action eliminates the repeat-sample approach and makes no
[[Page 1962]]
distinction for compliance purposes between samples collected at entry
points and those collected from distribution system taps. The duration
of an excursion for a WQP measured less frequently than daily at a
sampling location is the number of days between the excursion and the
day a subsequent sample taken for the same parameter at the same
sampling location is within the State-specified limits. The day on
which the daily value is outside the State-specified limits is the
first day of the excursion. The day preceding the day that a subsequent
sample taken for the same parameter at the same sampling location is
again within the State-specified limits is the last day of the
excursion. Thus, if a distribution system tap location has an excursion
(e.g., on a Monday) and the system collects another sample three days
later (e.g., on Thursday) that is within the limits, the system has had
an excursion of with a duration of 3 days and will remain in compliance
if it does not have more than six other days in the six-month period
during which an excursion occurs at any sampling location.
The August 1998 Notice proposed that where a water system is
conducting continuous monitoring, the results be recorded every four
hours for the purpose of determining compliance with Sec. 141.82(g).
Some commenters expressed concern that this requirement could be
burdensome for some systems. One State noted that such a requirement
would necessitate a change to State reporting forms which currently
only have room for the system to record a daily value for each WQP.
Other commenters noted that the proposed provisions did not address
those instances where continuous monitoring equipment is not working
properly. EPA has dropped the requirement to record continuous
monitoring results every four hours. States have the discretion to
specify the frequency of recording continuous monitoring results.
Today's action makes no distinction between continuous monitoring
results and grab sample results. If both are collected on the same day,
both must be included in the calculation of the daily value.
Several commenters objected to the proposed requirement that OWQP
compliance be determined quarterly and suggested that a more
appropriate frequency would be annual or every six months. A few of
these commenters expressed the opinion that a quarterly compliance
determination would be more stringent than the 1991 requirements. EPA
disagrees with this interpretation. Under the 1991 requirements, a
water system could incur a violation any time the results of a sample
(or the results of a sample averaged with the results of a confirmation
sample taken within three days of the original sample) were below the
minimum value or outside the range of values designated by the State
under Sec. 141.82(f). A system could thus incur a violation as
frequently as every two weeks. Under the revisions proposed in the
August 1998 Notice, a water system would incur no more than one OWQP
violation a quarter. Nevertheless, the Agency agrees that determining
compliance with OWQPs once every six months, instead of once every
three months, is more consistent with other monitoring frequencies in
the LCR. For these reasons, today's action requires OWQP compliance to
be determined every six months.
Finally, a few commenters responded that they did not believe the
proposed modifications made clear the circumstances that would remove a
system's eligibility for reduced monitoring under Secs. 141.86 and
141.87. Today's action includes some additional changes to the language
of Secs. 141.86 and 141.87 to clarify that failure to comply with the
requirements of Sec. 141.82(g) removes a system's eligibility for
reduced monitoring for lead and copper at the tap as well as reduced
WQP monitoring within the distribution system. Systems that lose this
eligibility must requalify in accordance with the requirements of
Sec. 141.86(d)(4) in order to resume reduced monitoring for lead and
copper at the tap and must requalify in accordance with the
requirements of Sec. 141.87(e) in order to resume reduced monitoring
for WQPs at the tap.
(iii) Today's action. After considering the comments received, EPA
has modified the OWQP compliance requirements of Sec. 141.82(g) as
follows:
Compliance will be calculated for each 6-month period
specified in Sec. 141.87(d) during which the water system is required
to conduct WQP monitoring, regardless of the frequency of WQP
monitoring. The first six-month period begins on the date the State
specifies the OWQPs under Sec. 141.82(f). A water system with
excursions (see following paragraph) occurring/persisting on more than
nine (9) days during the six-month period would be out of compliance.
The 9 days need not be consecutive, but may be.
An excursion is defined as a ``daily value'' for a
parameter that is below the minimum value or outside the range of
values designated by the State under Sec. 141.82(f) as representing
optimal corrosion control.
``Daily values'' will be determined for each parameter at
each sampling location. The daily values are to be calculated based on
the frequency of sampling for the parameter at the sampling location.
If measurements for the parameter are collected at the sampling
location more frequently than once a day, the daily value will be
calculated by averaging all of the results measured at the sampling
location for the parameter during the day (regardless of whether the
results are measured through continuous monitoring, grab samples, or
both) unless EPA has approved an alternative formula under Sec. 142.16
as a part of the State's application for a primacy revision submitted
pursuant to Sec. 142.12. If measurements for the parameter are
collected only once a day at a sampling location, the daily value will
be the daily measurement. If measurements for the parameter are
collected less frequently than once a day at the sampling point, the
daily value will be the most recent measurement taken, even if that
measurement was collected during a previous monitoring period.
Under this calculation, there is no distinction between a
measurement taken at an entry point and one collected from a
distribution system tap. The Agency recognizes that systems subject to
reduced monitoring for WQPs at the tap may not collect samples from
every site during each six-month period. In such cases, where the
system does not collect any samples for a distribution system tap
sampling location during the six-month period, the sampling location
would have no excursions if the most recent measurements at that site
were within the State-specified limits. If, on the other hand, the
system's most recent measurements were taken at the distribution system
tap sampling location during the previous monitoring period and were
outside the State-specified limits, the system would be out of
compliance with Sec. 141.82(g) and would therefore be triggered back
into standard WQP monitoring.
Corresponding revisions have been made to the language of
Secs. 141.86, 141.87, and 141.90. EPA has revised the language of
Secs. 141.86(d)(4)(v)--redesignated as Sec. 141.86(d)(4)(vi)--and
141.87(e)(4) to clarify that any water system that is out of compliance
with the requirements of Sec. 141.82(g) is ineligible to conduct
reduced monitoring for lead and copper at the tap and for WQPs within
the distribution system. Systems that lose their eligibility for
reduced monitoring cannot resume reduced monitoring for lead and copper
at the tap or for WQPs within the distribution system until they have
completed two consecutive six-month rounds of monitoring that
[[Page 1963]]
meet the requirements of Secs. 141.86(d)(4) and 141.87(e),
respectively.
Section 141.87(d) has been revised to define the six-month periods
for the purpose of WQP monitoring once the State has designated OWQPs
under Sec. 141.82(f). The first such period shall begin on the date the
State specifies the OWQPs. For small and medium-size systems conducting
reduced monitoring for lead and copper at the tap that are triggered
into WQP monitoring pursuant to Sec. 141.87(d), the end of the six-
month period for monitoring under Sec. 141.87(d) shall be synchronized
with the end of the reduced monitoring period under Sec. 141.86(d)(4)
during which the action level exceedance occurred. The wording of
Sec. 141.87(d) has been streamlined by referencing, but not repeating,
the compliance requirements specified in Sec. 141.82(g). The Agency has
revised the requirements of Sec. 141.90(a)(1) to require that the WQP
monitoring results be provided to the State no less frequently than ten
days after the end of each six-month monitoring period, unless the
State has specified a more frequent reporting requirement.
Finally, today's action revises the provisions of Sec. 142.16(d)(1)
to add an optional special primacy condition for States that want to
use a formula, other than that specified in Sec. 141.82(g), to
calculate the daily value when multiple measurements are taken on the
same day for a water quality parameter at the same sampling location.
3. Revisions to Sec. 141.84
a. Proposed revision and background. Section 141.84 requires
systems that fail to meet the lead action level after installing CCT
and/or source water treatment to replace lead service lines (LSLs). As
promulgated in 1991, Sec. 141.84(d) required a water system to replace
the entire LSL, up to the building inlet, unless the system
demonstrated to the satisfaction of the State that it controlled less
than the entire service line. EPA promulgated a definition of
``control'' that was subsequently vacated and remanded to EPA as a
result of a judicial challenge to this aspect of the Rule to the extent
the definition of control applied to portions of the line beyond a
water system's ownership.4 The court in that case ruled that
EPA did not provide an opportunity for the public to comment on the
Agency's expansive definition of control. The court did not address the
question of whether the definition was within EPA's authority under
SDWA. In the April 1996 Proposal, EPA requested comment on a revised
definition of ``control'' that would include the portion of the line
the water system owns as well as any additional portion over which it
has the authority to replace. The Agency explained that it was
concerned that the LSL replacement requirements in the 1991 LCR, which
obligated systems to also replace the privately-owned portion of the
line where the system had the authority to replace, repair, or maintain
the line, or had other forms of authority over the line, could result
in confusion and delay in implementation of the Rule. Confusion could
result from different perceptions of the precise scope of the system's
legal authority, and resolution of such disputes could require the
intervention of the State in a potentially time-consuming process. EPA
also proposed to remove the rebuttable presumption in Sec. 141.84(e)
that the water system controls the entire length of the LSL.
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\4\ AWWA v. EPA, 40 F.3d 1266 (D.C. Cir. 1994).
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EPA is aware of some information indicating that partial
replacement of LSLs may result in transitory increases in levels of
lead at the tap immediately following replacement (see 56 FR 26505,
middle of second column, Jun. 7, 1991). The Agency believes that the
entire length of the service line should be replaced wherever such
replacement is possible. For this reason, the 1996 proposed revision to
Sec. 141.84(d) did not include any changes to the requirement that
water systems offer to replace the privately-owned portion of the LSL
(at the building owner's expense) and, if requested by the resident(s),
collect a post-partial replacement sample and report the results to the
resident(s) within 14 days of the partial LSL replacement.
In light of commenter concerns about the retention of partial LSL
replacement requirements in the April 1996 Proposal, EPA included a
request for comment in the April 1998 Notice on additional changes to
the LSL requirements. Specifically, EPA requested comment on the
following: (1) Clarifying that a system should make the offer to
replace the privately-owned portion of the LSL to the owner, rather
than the user; (2) adding a requirement that the system notify the
resident(s) of the building(s) served by the LSL at least 45 days prior
to partial LSL replacement and provide guidance on possible short-term
lead level increases and preventive measures consumers can take to
minimize exposure; (3) replacing the 1991 LCR requirement for a
resident-requested follow-up sample within 14 days of partial LSL
replacement with a requirement to collect a sample within 24 hours of
partial LSL replacement, and to notify the resident(s) within 3 days of
the system's receipt of the results; and (4) adding flexibility in the
method of resident notification.
b. Comments and analysis.
(i) Definition of ``control.'' In the April 1996 Proposal, the
Agency solicited comments, specifically regarding the degree to which
systems may have the authority to replace the privately-owned portions
of LSLs. In addition, EPA solicited comments regarding the option of
only requiring replacement of the portion of the line owned by the
water system, explaining that such an approach would further simplify
implementation of the rule because the division in ownership between
the system and the user would be clear to all parties.
Three commenters supported the definition of control that EPA
proposed, that is water systems must replace the portion that they own
as well as the portion over which they have the authority to replace.
All other commenters supported the more limited definition that equates
control with ownership. Commenters felt that it is appropriate to hold
the water system responsible only for the portion of the service line
the system owns. In addition, the commenters felt that defining control
as ownership would avoid confusion and ambiguities about the scope of
the water system's authority to replace LSLs. These commenters opposed
the idea of also requiring a water system to replace any additional
portion of the line that it does not own but for which it has the
authority to replace. Their reasons for opposing the proposed
definition included: lack of legal authority; difficulty obtaining
permission to replace LSLs on private property; concern about using
public funds to do work on private property; and potential conflicts/
lawsuits involving utilities, homeowners and independent contractors.
Some commenters argued that EPA does not have the statutory authority
to require LSL replacement by the water supplier on private property.
After consideration of these comments, the Agency agrees that the
broader definition of ``control'' (that is, the water system would be
required to replace the portion of the LSL that it owns plus any
additional portion of the line that it has the authority to replace)
could result in unintended delays and other complications. For this
reason, EPA believes it is appropriate to equate ``control'' with
``ownership'' in order to eliminate potential legal confusion and
delays in implementing the Rule.
(ii) Elimination of the rebuttable presumption. Most commenters did
not
[[Page 1964]]
explicitly address EPA's proposal to remove the rebuttable presumption
that the water system controls the entire length of the LSL. Those who
did address the issue supported the Agency's proposal. EPA is
eliminating the rebuttable presumption as proposed, since it is no
longer needed now that the definition of ``control'' equals ownership
under today's rule.
(iii) Possible adverse health effects associated with partial LSL
replacement. A number of commenters to the April 1996 Proposal and the
April 1998 Notice expressed concern about the possible adverse health
effects associated with partial replacement of LSLs. These concerns
were similar to those expressed by commenters to the 1988 proposed LCR.
The commenters felt that replacing only part of the service line could
actually increase the lead levels at the tap because of galvanic
action, the disruption of the protective coating on the inside of the
pipe and the entry of particulate lead to the supplied water. Some of
the commenters on the April 1996 Proposal referred to the case studies
(Britton and Richards, 1981; EPA, 1991b; Pocock, 1980) cited by the
Agency in the preamble to the 1991 LCR. EPA stated in the preamble that
the Agency thought partial LSL replacement could increase lead levels,
but that EPA believed increased levels, if they occur, will be
temporary and will decrease over time. A number of commenters argued
that these studies show increased lead levels from partial LSL
replacement and that the levels do not necessarily decrease. EPA has
reanalyzed the three case studies to better assess the lead level
increases resulting from partial LSL replacement (EPA, 1998c). This
reanalysis confirmed that lead levels at the tap, will in some
instances, increase immediately after partial replacement of the LSL.
The results of the same studies also revealed that subsequently, over
the long run, lead levels will decrease below the pre-replacement
levels after partial LSL replacement. The commenters on both the 1996
and 1998 proposals also stated that several water systems which began
voluntary programs to replace their portion of the LSL observed
increased lead levels after replacement. However, no new data were
submitted to the Agency for analysis. The Agency believes that the
temporary rise in lead levels indicates not only the presence of lead
materials in the distribution system (i.e., service lines, probably
lead pipe), but also poor corrosion control. It is expected that
potential for temporary increases in lead levels will be minimal for
those systems where corrosion control has been fully implemented and
optimized as required by the Rule.
Four case studies were examined to assess the impact of partial LSL
replacement (EPA, 1998c). Only two of the case studies have adequate
data to assess the impact on lead levels at the tap, relative to time
elapsed after replacement. The first study was conducted in Scotland.
Lead levels were observed at a residence after partial LSL replacement
over a four-month period (Britton and Richards, 1981). The other study
was conducted by EPA at several homes in Oakwood, Ohio and lead levels
were recorded for several weeks after replacement (EPA, 1991b).
The study by Britton and Richards showed a temporary rise in lead
levels at the tap. There were four monitoring periods in this case
study: before replacement, one week after replacement, two months after
replacement, and four months after replacement. During each period, 10
first-draw and 10 random daytime samples were collected daily over a
two-week period. First-draw samples were taken in the morning before
any other water in the household had been run. The random daytime
samples were taken later that day without running any water to waste
before sampling.
The elevated lead levels produced by partial LSL replacement were a
short-term phenomenon. The average concentrations for the first-draw
and random daytime samples taken ``four months after replacement'' are
lower than the average concentrations of the ``before replacement''
samples. In addition, the first-draw and random daytime samples were
averaged for each sampling period to better assess the impact of
partial LSL replacement on lead levels at the site. The averages of all
samples taken ``four months after replacement'' is 25 percent lower
than the averages of all samples taken ``before replacement.'' The
percentage reduction is even larger when the average of the first-draw
samples are compared. The data on the range of concentrations and the
percentages of samples above 0.100 mg/L and 0.050 mg/L also support the
benefits of partial LSL replacement. The highest concentration in the
first-draw samples taken ``four months after replacement'' is less than
half the highest concentration taken in the first-draw samples taken
``before replacement.'' In addition, the percentages of samples with
concentrations above 0.100 mg/L and 0.050 mg/L are lower in the data
taken ``four months after replacement.'' This trend is observed in both
the first-draw and the random daytime samples. This study supports
EPA's contention that although lead levels at the tap will in some
instances increase immediately after partial replacement of the LSL,
over the long run, lead levels will decrease below the before
replacement levels.
The EPA study was designed to observe the effects of partial LSL
replacement. First-draw samples and service line samples were taken
before and after replacement of LSLs at four sites in Oakwood, Ohio.
One limitation of this study is that the lead levels before replacement
were below the trigger of 0.015 mg/L. LSL replacement would not be
required for these sites under the LCR. Another limitation is the
duration of sampling. A complete set of post-replacement samples was
not taken at every site making it difficult to fully examine the impact
of time on post-replacement lead levels. The third limitation is that
the date of the partial LSL replacement for each of the four sites is
not recorded in the summary.
The results from the first round of post-replacement samples are
very similar to the pre-replacement results. The averages of the pre-
and post-replacement samples for three of the sites were within 3
``/L of one another, and all were at or below 10 /L.
The average service line lead level almost doubled at one site and
exceeded the action level of 15 /L after replacement. However,
the average for the three service line samples taken at this site the
following week was dramatically lower. The averages for the service
line samples taken at the other two sites during this sampling period
were also lower than the averages for the first after replacement
sampling period. The results from the second round of post-replacement
monitoring showed a significant decrease in lead levels when compared
to the pre-replacement averages. The post-replacement averages from the
second monitoring period showed approximately a 50 percent reduction
from the pre-replacement averages. The data from the third round of
post-replacement monitoring only showed a slight additional decrease in
lead levels. The levels are below 5 /L, so further significant
reductions would be unlikely. These data do not support the commenter's
contentions that lead levels are elevated after partial LSL replacement
and that lead levels do not necessarily decrease. These data do appear
to indicate that requiring replacement of lines where tap levels are
already low (i.e., below 0.015 mg/1) might not result in dramatic
improvements in lead levels.
In practice, EPA believes that many systems required to replace
LSLs will receive consent to remove any privately-
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owned portions since it is in the homeowners' interest to completely
remove this source of lead in their drinking water. In those cases
where the PWS cannot obtain permission to remove the entire line, EPA
still believes there are benefits to partial replacement. Partial
removal of a LSL will reduce the likelihood of exposure to lead from
drinking water because there will be a smaller volume of water in
contact with the LSL. Consumers are more likely to consume water with
elevated lead levels from longer lines because a larger volume of water
will have elevated lead levels. As previously explained in detail in
the 1991 LCR, data collected by Pocock (1980) from over 2,000 homes in
the United Kingdom support the view that the likelihood of elevated
lead levels varies in relation to the length of the LSL. These findings
are also consistent with Kuch and Wagner's (1983) mass transfer
modeling, which predicted the dependence of lead levels on the length
and diameter of a lead pipe (i.e., higher lead levels with longer lead
pipe).
The Agency believes the water system should replace the entire
length of the line wherever possible. Today's action therefore retains
a requirement for the water supplier to offer to replace the privately-
owned portion of the line. This requirement has been revised to exclude
those instances where doing so is precluded by State, local or common
law. There is no requirement for the system to bear the cost of
replacing the privately-owned portion of the line. Thus, if the
property owner does not want to pay for removal of the privately-owned
portion of the line, the system is only required to replace the portion
it owns. The Agency believes that the requirement for systems to offer
assistance with replacement of privately-controlled service lines is an
efficient and effective means of maximizing the public health benefits
achieved by the rule.
(iv) Resident notification of partial LSL replacement. In response
to the April 1998 Notice, no commenter objected to requiring the system
to contact the ``owner'' rather than the ``user'' when offering to
replace the privately-owned portion of the service line. Several
commenters expressed concern that requiring notification to residents
45 days in advance of the partial replacement would present a hardship
in instances where the system is replacing the line in conjunction with
making emergency repairs. A few commenters objected to the requirement
that the water system be responsible for providing notification to
residents of multi-family buildings and other non-billing unit
residents and suggested this should be the responsibility of the
building owner. Finally, several commenters expressed concern about the
requirement for a post-replacement sample taken within 24 hours of the
replacement. The concerns included timing problems associated with
weekends and holidays, the likelihood that such a sample would not be
representative of the lead levels after stabilization, and the added
cost and burden associated with the requirement.
To minimize the risk that residents will incur increased exposure
because of partial line replacement, EPA is including the requirement
that water systems provide a notice of the partial replacement to the
residents at least 45 days before commencing with the partial LSL
replacement, inform residents that they may experience a temporary
increase of lead levels in their drinking water, and provide residents
with guidance about the measures they can take to minimize their
exposure to lead. The Agency feels that 45 days is a sufficient amount
of time for the recipients to study the guidance provided by the water
supplier, to familiarize themselves with the potential ramifications
associated with the partial LSL replacement, and to plan and implement
appropriate measures to avoid exposure to lead. The Agency agrees with
commenters, however, that a 45-day lead time is not practicable in
those instances when replacement is being done in conjunction with
emergency repairs. EPA has therefore included provisions giving States
the discretion to allow for notification of less than 45 days in such
instances. States will need to review such requests on a case-by-case
basis unless they adopt appropriate State regulations to allow
notification of less than 45 days in conjunction with emergency
repairs.
As an additional precautionary measure, the water system is
required to collect a follow-up LSL sample, to determine whether the
partial LSL replacement caused an increase of lead levels in the
drinking water, and to provide the results to residents. The 1991 LCR
required the water supplier to inform residents served by partially-
replaced LSLs that they were entitled to have a tap water sample drawn
and analyzed within 14 days of the completion of the partial
replacement. Upon further consideration, the Agency believes the
requirement, as codified in 1991, could place an undue burden on the
water system in those instances where a line serves a large multi-
family residence because the system could be required to take a large
number of samples if every unit requested one. The follow-up sampling
that would be required by the changes to Sec. 141.84(d) discussed in
the April 1998 Notice is intended to show the ``worst-case'' effects of
partial LSL replacement and is not intended to be used in 90th
percentile calculations or for determining compliance with optimal
corrosion control or source water treatment requirements. Under the
revised requirement, the water system is required to collect only one
sample for each partially-replaced LSL. EPA therefore does not believe
that a large number of samples is required.
EPA is including the requirement that the water system collect a
tap water sample representative of the water in the service line for
analysis of lead content as prescribed in Sec. 141.86(b)(3) and provide
the results to the residents quickly. Prior to collecting the follow-up
sample, water must remain sitting in the pipe for at least 6 hours
following partial LSL replacement. The Agency is sensitive to commenter
concerns that collecting such a sample within 24 hours of the partial
replacement may cause additional burden. In those cases where the
partial replacement is completed on a Friday or just before a holiday,
staff may not be available outside of normal working hours to collect
such a sample. For these reasons, EPA agrees with commenters that
extending the time frame for collecting the follow-up sample from 24
hours to 72 hours is reasonable and the Agency has done so in the final
rule language. In response to commenter suggestions, the Agency also is
clarifying in the rule language that the water system is expected to
pay for this sampling. EPA does not believe that the follow-up sampling
and notification constitute a significant burden to the system compared
with the cost of the partial LSL replacement.
The Agency believes that the affected parties should be provided
with the test results as quickly as possible so they can implement
appropriate measures, commensurate with the findings, as soon as they
can to minimize their exposure to lead. In addition, unnecessary
expenses and further concerns on the part of consumers could be
alleviated in instances where the analytical results indicate little or
no increase in lead levels, or an immediate decrease in lead levels,
resulting from the partial removal of the LSL. EPA therefore is
retaining the requirement that water systems provide the results of
this post-replacement sample to consumers within three days of
receiving the results. The Agency has
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clarified the rule language to reflect that the three days are business
days.
While EPA is sensitive to the difficulties associated with
providing notification to residents of non-billing units (for example,
apartment buildings and other rental units), the Agency believes it is
important that the water system take pro-active measures to notify
these residents. The Agency therefore is including the requirement that
the water system provide the pre-partial LSL replacement information
and the post-replacement sample results to these residents as well as
to the residents of billing units. In the case of single family
residences, this notice must be made by mail unless another mechanism
is approved by the State. To avoid problems arising from delivery
delays beyond the system's control, notifications which are postmarked
within the required time will be considered acceptable. In the case of
multi-family residences, the regulation gives the water supplier the
option to post the information in a conspicuous place.
(v) Reporting of post-replacement sampling results to the State.
Most commenters supported the proposed requirement that water systems
provide the State a copy of the results of samples collected
immediately following partial LSL replacement within the first ten days
of the month following the month in which the results are received from
the laboratory. Two commenters, however, suggested that EPA provide
States flexibility in the manner, format, and timing of reporting;
three other commenters opposed the requirement altogether. After
consideration of these comments, EPA has retained the reporting
requirement but has given States the flexibility to modify or eliminate
it. Even if the State does not require these results to be reported,
water systems are required to maintain records of the sampling results
in accordance with Sec. 141.91.
(vi) Financial impacts of LSL replacement. Some commenters were
concerned about the financial impacts associated with LSL replacement.
They felt that compliance with the regulation will be particularly
burdensome for some cities that have a high percentage of LSLs. One
commenter stated the belief that EPA's 1991 LCR estimate of the average
removal cost per line was extremely conservative when made and is now
outdated, and actual costs could be significantly higher and submitted
supporting data. The cost of the original LSL replacement requirements
is outside the scope of this rulemaking. EPA did not propose any
changes to the basic LSL replacement requirements nor did EPA ask for
comment on those requirements or otherwise reopen that issue.
(vii) Other LSL comments. Some commenters raised issues with the
basic LSL replacement requirements of the rule, such as the requirement
to replace or sample 7 percent of lines each year and the basic
reasonableness of requiring systems to replace some portion of the line
when levels at the tap are above 15 ppb. These comments are outside the
scope of this rulemaking because EPA did not propose revisions to, or
otherwise reopen, the basic LSL replacement requirements in this
proceeding. Rather, the only aspects of the 1991 Rule addressed here
are the definition of ``control'' for purposes of determining the
portion of the service line the system is required to replace, and
sampling and notification requirements that relate to the potential for
partial LSL replacement.
c. Today's action. EPA has eliminated the ``control'' terminology
from the Rule. Today's action revises Sec. 141.84(d) to require the
water system to replace only the portion of the LSL that it owns. Water
systems subject to LSL replacement requirements continue to be required
to offer to replace the privately-owned portion of the line, however,
Sec. 141.84(d) has been revised to clarify that the offer must be made
to the owner of the property, or the owner's authorized agent, rather
than the user.
Today's action also revises the requirements in Sec. 141.84(d) that
a water system must satisfy when replacing only a portion of the LSL.
The requirement that a water system offer to take a post-replacement
sample within 14 days of the partial replacement has been replaced with
the following requirements.
At least 45 days prior to the partial replacement, the
water system must notify all residents of the building served by the
line that the partial replacement will occur, alert them that they may
experience a temporary increase of lead levels in their drinking water,
provide them with guidance on measures they can take to minimize their
exposure to lead, and inform them that the water system will collect a
follow-up sample within 72 hours of completing the partial replacement,
and notify them of the results of that sample. The State has the
discretion to allow less than a 45-day advance notice in those
instances where the partial replacement is being performed in
conjunction with emergency repairs.
Within 72 hours of completing the partial LSL replacement,
the water system shall collect a tap water sample representative of the
water in the service line for analysis of lead content in accordance
with the procedures specified in Sec. 141.86(b)(3). The system shall
report the results of the analysis to the owner and the resident(s)
served by the line within 3 business days of receiving the results.
Mailed notices post-marked within 3 business days of receiving the
results shall be considered ``on time.''
For the purpose of satisfying the notification
requirements of Sec. 141.84(d), the water system shall provide the
information to the residents of individual dwellings by mail or by
other methods approved by the State. In instances where multi-family
dwellings are served by the line, the water system shall have the
option to post the information at a conspicuous location.
Today's action also makes three other changes in Sec. 141.84.
Section 141.84(e) has been deleted, since the rebuttable presumption is
no longer appropriate. Sections 141.84(f) through (h) have been
redesignated as Secs. 141.84(e) through (g). The Agency also has made a
slight modification to Sec. 141.84(b) to explicitly require the system
to document, in system files, the portion(s) of the LSL(s) owned by the
system. The third sentence of Sec. 141.84(b) has been revised to read
as follows: ``The system shall identify the initial number of lead
service lines in its distribution system, including an identification
of the portion(s) owned by the system, based on a materials evaluation,
including the evaluation required under Sec. 141.86(a) and relevant
legal authorities (e.g., contracts, local ordinances) regarding the
portion owned by the system.'' EPA does not intend that systems provide
this information to the State; however, the Agency thinks it is
important for a record to exist that documents the baseline. These
records should be available for inspection at the system upon request.
The reporting requirement at Sec. 141.90(e)(4), to submit
documentation if the system believes it does not control the entire
length of the line, has been replaced with a requirement that the water
system report the results of the post-partial replacement sampling to
the State within the first ten days of the month following the month in
which the system receives the laboratory results, unless otherwise
specified by the State. States, at their discretion, may eliminate this
reporting requirement. Systems shall also report additional information
as specified by the State, and in a time and manner prescribed by the
State, to verify that all partial LSL replacement activities have taken
place.
Finally, these changes to Sec. 141.84 necessitate conforming
changes to
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Sec. 141.85(a) and Part 142. EPA has revised the language of
Sec. 141.85(a) slightly to remove references to LSL control. The phrase
``each lead service line that we control'' in Sec. 141.85(a)(1)(i) (as
redesignated) has been revised to read ``the portion of each lead
service line that we own.'' The discussion of LSL replacement in
Sec. 141.85(a)(1)(iv)(B)(5) (as redesignated) has been revised to
reflect the notification and post-partial replacement sampling
requirements in today's action. Section 142.14(d)(8)(vii), requiring
States to maintain records of their determination that a water system
does not control the entire length of the LSL, has been deleted;
however, two new State recordkeeping requirements have been added.
Section 142.14(d)(8)(xvi) requires States to maintain records of any
system-specific determinations regarding the submission of information,
including post partial replacement test results, to demonstrate
compliance with partial lead service line replacement requirements.
Section 142.14(d)(10)(ii) has been added to include a requirement that
States maintain records related to system compliance with partial lead
service line replacement requirements. Section 142.16(d)(3) has been
revised to eliminate the requirement that States describe in their
primacy program revision application how they plan to make
determinations that a water system does not control the entire length
of the LSL. It has been replaced with a requirement that States
describe in their primacy program revision how they will verify that
all partial LSL replacement activities have been completed properly.
4. Revisions to Sec. 141.85
a. Changes affecting content of written materials.
(i) Proposed revision and background. In the April 1996 Proposal,
EPA requested comment on a revision that would provide separate
mandatory public education language for use by NTNCWSs and certain
CWSs, such as prisons and hospitals, which is more appropriate for
these systems. The proposed NTNCWS language would eliminate references
to ``homes in the community'' and some suggestions for reducing lead
exposure which may be beyond the control of consumers served by such
water systems. As a part of this provision, the Agency proposed that
the CWSs approved to use the NTNCWS language also be permitted to
deliver their public education program as if they were a NTNCWS. The
Agency proposed these changes to address concerns of EPA Regions and
States that the mandatory language specified in the 1991 LCR may not be
appropriate for NTNCWSs or certain small CWSs (such as prisons and
hospitals) that primarily serve confined populations. In order to
incorporate these changes into the LCR, EPA proposed to renumber
Sec. 141.85(a) as Sec. 141.85(a)(1) and to incorporate the NTNCWS
language at Sec. 141.85(a)(2). EPA also proposed to add a paragraph
(c)(7) to Sec. 141.85. This new paragraph would identify the types of
CWSs who might be eligible to use the NTNCWS language. As proposed,
CWSs would need State approval to use the NTNCWS language, however, EPA
also solicited public comment on the necessity of this up-front
approval.
(ii) Comments and analysis. While all commenters supported the
proposed revisions, some offered additional suggestions for
consideration by EPA. For example, suggestions were made to allow CWSs
to delete references to LSLs where none exist, and to delete references
to building permit records where the records are unavailable. Another
suggestion was to allow NTNCWSs with internal e-mail systems to
distribute the required public education information electronically in
lieu of printed format. EPA agrees with these suggestions, and has
incorporated language which gives States the flexibility to approve
these minor changes to the public education language.
Some commenters suggested that EPA allow systems additional
flexibility to tailor public education language. The public education
language specified in the regulations is a mandatory minimum. The
mandatory language specified in the regulations was developed to
provide consistent, beneficial information to consumers regarding lead
in their water supply. Systems may request approval from States to
include additional language, to provide consumers with information
specific to a particular system. EPA believes the LCR, as revised by
today's action, provides sufficient flexibility to address system-
specific circumstances.
EPA received mixed comments on whether up-front State approval for
CWSs to use the NTNCWS public education language should be required for
CWSs that meet the specified criteria in the proposed
Sec. 141.85(c)(7). After considering these comments, EPA believes that
the issue of whether to require up-front approval should be decided by
the States. The language at Sec. 141.85(c)(7) has been modified to
allow States to decide whether systems that qualify to use the
alternative public education language need to request State approval.
(iii) Today's action. EPA has made the following revisions to
Sec. 141.85 to reflect the changes discussed above. The Agency has
redesignated paragraph (a), except for the phrase, ``Content of written
public education materials,'' as paragraph (a)(1) and titled it as
``Community water systems.'' The subordinate paragraphs have been
redesignated accordingly. The introductory text of paragraph (a)(1) has
been expanded to allow CWSs, with State approval, to delete information
pertaining to lead service lines if no lead service lines exist
anywhere in the water system service area. As discussed in section
C.3.c. of this preamble, EPA has replaced the phrase ``each lead
service line that we control'' in paragraph (a)(1) with the phrase
``the portion of each lead service line that we own.'' Section
141.85(a)(1)(iv)(B)(5) also has been revised to reflect that a water
system is only required to replace the portion of the lead service line
that it owns and to reflect the notification and post-partial-
replacement sampling requirements contained in Sec. 141.84(d) of
today's action. Systems, however, may continue to use pre-printed
materials with the old language, if they so choose.
The language of Sec. 141.85(a)(1) also has been expanded to allow
systems to modify, with State approval, the language at
(a)(1)(iv)(B)(5) and (a)(1)(iv)(D)(2) regarding building permit record
availability and consumer access to these records if such information
is not available.
EPA has added new paragraphs at (a)(2) to specify alternative
mandatory language for use by NTNCWSs. These systems have the
discretion to use either the language in Sec. 141.85(a)(1) or the
language in Sec. 141.85(a)(2). The introductory text of
Sec. 141.85(c)(4) also has been revised to update the paragraph
references applicable to repeat public education tasks.
EPA also has added a paragraph (7) to Sec. 141.85(c). This
paragraph specifies the characteristics of CWSs that may be eligible to
use the NTNCWS language and provides flexibility for eligible CWSs to
substitute posting and distribution of informational pamphlets/
brochures in lieu of meeting the CWS public education distribution
requirements. CWSs delivering public education as if they were a NTNCWS
would be required to repeat public education tasks only once per
calendar year in which the system exceeds the lead action level. States
have the flexibility to waive the requirement for prior State approval
for these special-
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case CWSs to deliver public education as if they are NTNCWSs.
In addition, EPA has revised Sec. 141.85(c)(4)(ii) to permit a
NTNCWS to utilize electronic transmission in lieu of or combined with
printed materials as long as it achieves at least the same coverage.
Finally, EPA has added provisions in a new Sec. 142.14(d)(8)(x)
that require States to maintain records pertaining to any system-
specific decisions made under Sec. 141.85 regarding the content of
written public education materials and/or the distribution of these
materials.
b. Public education delivery requirements.
(i) CWSs serving 3,300 or fewer people.
(A) Proposed revision and background. The April 1996 Proposal
included a provision to allow CWSs serving 500 or fewer people to
forego the newspaper and electronic media notifications required as a
part of public education because these systems rarely are served by
general circulation newspapers and radio/television stations that have
audiences limited to the public water system's service area. The Agency
explained that it believes such a revision is necessary to minimize the
unintended burden resulting from a system needing to respond to
numerous inquiries from individuals it does not serve. For the same
reason, EPA also proposed to allow systems serving 500 or fewer people
to limit the distribution of informational brochures to facilities and
organizations likely to be frequented by pregnant women and children.
Finally, EPA requested public comment on a burden reduction suggestion
to allow CWSs serving 501 to 3,300 people to forego the public service
announcement requirements contained in Sec. 141.85(c)(2)(iv) since the
major radio/television stations usually broadcast to a much broader
area than that served by the water system.
(B) Comments and analysis. Most of the commenters supported the
proposed revision pertaining to the delivery of public education by
CWSs serving 500 or fewer people. Several commenters noted
discrepancies between the preamble discussion and the rule language,
however, and expressed concern that the rule language, as proposed,
would not accomplish the intended objectives.
One of the discrepancies involves the distribution of informational
pamphlets or brochures to facilities and organizations visited
frequently by pregnant women and children. In the preamble, EPA stated
the Agency's intent that these materials be distributed to appropriate
facilities served by the system and ``only those locations outside the
system's service area that are regularly visited by the system's
consumers.'' This latter requirement, to provide informational
materials to facilities and organizations not served by the system, was
not included in the proposed rule language. Several commenters
expressed concern that including such a requirement would result in the
same confusion and unintended consequences as the original
requirements. EPA agrees that limiting the distribution of materials to
facilities/organizations within the service area is appropriate and the
final rule language has been revised accordingly.
The second discrepancy between the 1996 preamble and proposed rule
language involves the question of what, if anything, the water system
would be required to do in lieu of newspaper and electronic
notification. In the preamble, EPA indicated that the Agency was
proposing to require CWSs, that serve 500 or fewer people and that
desire to omit tasks requiring submission of information to newspapers
and radio and television stations, to mail or hand deliver lead public
education materials to all other regular consumers (e.g., tenants of
multi-family residences whose water is included in their rent), in
addition to mailing these materials to all billing units (60 FR 16355,
top of third column). EPA inadvertently omitted this requirement from
the proposed rule language. Even though several commenters expressed
concern that such an alternative requirement would be as burdensome as
the original requirements, the Agency believes that such a requirement
is appropriate when newspaper notification and/or broad distribution of
pamphlets/brochures does not occur. The purpose of these activities is
to ensure that as many individuals served by the system as possible
receive timely public education materials. For systems serving 500 and
fewer people, the Agency does not believe that mailing or hand
delivering these materials to all households served by the system, in
lieu of these activities, constitutes an undue burden. The revised
provisions allow these systems the flexibility to select the least
burdensome among the allowable delivery mechanisms. The Agency has
therefore incorporated this requirement into the final rule language.
The comments received also supported the burden reduction
suggestion to eliminate the public service announcement requirement for
CWSs serving 501 to 3,300 people. EPA agrees and today's action revises
the rule language accordingly.
Several commenters recommended that EPA also allow CWSs serving 501
to 3,300 people to forego newspaper notification and broad distribution
of pamphlets and brochures to facilities and organizations that are
visited frequently by pregnant women and children. These commenters
believe that the problems associated with newspaper notification and
broad distribution of informational pamphlets and brochures affect most
small systems. EPA concurs that many systems serving between 501 and
3,300 people may be on the fringe of an urban or suburban area and that
distribution of broad-based public education for these systems may have
unintended consequences. The Agency believes, however, that allowing
these systems to automatically limit distribution of public education
materials is inappropriate. Such systems, for example, are more likely
to be served by local newspapers in which it may be appropriate to
include information about the system's lead levels. EPA believes that
States are in the best position to determine the extent to which CWSs
serving 501 to 3,300 people should limit distribution of public
education materials. The final rule therefore gives States the
authority, either through State regulations or by case-by-case written
approval, to allow CWSs serving 501 to 3,300 people to omit the
newspaper notification requirements and to limit the distribution of
materials to appropriate facilities and organizations served by the
system.
Finally, one commenter suggested that the alternate delivery
allowed for NTNCWSs and some small CWSs (institutions) should be
extended to mobile home parks, housing projects, subdivisions and
apartments. The commenter believes such systems serve a more or less
confined population that is readily accessible through a central mail
area and/or laundry area that makes hand delivery much easier and more
effective. EPA believes that the revisions discussed below provide
sufficient flexibility for the delivery of public education by CWSs.
EPA therefore has no plans at this time to make further changes to the
public education language requirements beyond those contained in
today's action.
(C) Today's action. EPA has revised the rule to add a new paragraph
at Sec. 141.85(c)(8) to allow any CWS serving less than or equal to
3,300 people to omit the public service announcement requirements of
Sec. 141.85(c)(2)(iv). Such systems are not required to obtain prior
State approval to omit these announcements, nor are they required to
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substitute any other tasks, in lieu of public service announcements, as
part of meeting the public education requirements.
In addition to omitting the public service announcement task for
small CWSs, the new Sec. 141.85(c)(8) provides some flexibility for
small CWSs to omit the newspaper notification required by
Sec. 141.85(c)(2)(ii) and to limit the distribution of informational
pamphlets under Sec. 141.85(c)(2)(iii) to appropriate facilities and
organizations served by the water system. In addition to mailing lead
public education materials to billing units, systems electing to limit/
omit these activities must also mail or hand deliver the required
public education materials to all other regular customers of the system
(i.e., households that are not billing units). CWSs serving 501 to
3,300 people must receive prior written approval from the State. State
approval is not required for CWSs serving 500 or fewer people, however,
Sec. 141.85(c)(8)(i)(A) gives States the authority to require such a
system to distribute to facilities and organizations not served by the
system in those instances where the State believes that a broader
distribution is appropriate. As discussed above, today's action also
adds the corresponding State recordkeeping requirements at a new
Sec. 142.14(d)(8)(x).
Finally, Sec. 141.85(c)(8)(ii) clarifies that small CWSs that omit
the public service announcement tasks are required to repeat public
education tasks only once during each calendar year until such time as
the results of lead and copper tap water monitoring indicate that they
no longer exceed the lead action level.
(ii) Timing and method of distribution.
(A) Proposed revision and background. In the April 1996 Proposal,
EPA sought comment on proposed changes pertaining to the mailing and
timing of public education materials by CWSs that exceed the lead
action level. Specifically, the Agency proposed two modifications to
Sec. 141.85(c)(2)(i) to: (a) Allow a CWS having a billing cycle that
does not include a billing within 60 days of exceeding the lead action
level to mail the materials on the same schedule as the system's
billing cycle as long as the mailing occurs within six months after the
exceedance; and (b) allow a CWS that cannot insert information in the
water utility bill, without making major changes to its billing system,
to use a separate mailing to deliver the public education materials as
long as the information is delivered within the required time frame.
EPA also proposed to require CWSs utilizing a separate mailing to
include an alert with the materials to minimize the risk that they
would be discarded as ``junk mail.'' The Agency proposed these changes
to minimize the unintended additional burden associated with making
changes in a water system's billing cycle and/or process to accommodate
the rule's public education requirements.
(B) Comments and analysis. Commenters generally were supportive of
these proposed changes, except for one State which disagreed with
allowing systems up to six months to deliver the public education
materials because of the potential health risks, especially for
pregnant women, if customers are not informed in a timely manner. After
further consideration of the public health issues, EPA has decided to
retain the current requirement that all systems exceeding the lead
action level distribute public education materials within 60 days of
the exceedance. The decision to retain the 60-day requirement is based
on these considerations: (1) Extending the time period to distribute
public education materials could lessen public health protection.
Pregnant women, in particular, might not receive timely notice if the
system were allowed up to six months after becoming aware of an
exceedance to provide the public education materials. (2) Allowing
different time requirements based on non-risk-related factors such as
billing cycles could provide unequal health protection. (3) State
administrative costs would increase since the State would need to be
aware of a system's billing cycle in order to determine compliance with
this requirement.
EPA agrees with commenters, however, that the mailing of public
education materials separately from the water bill is appropriate in
many instances and is revising the public education requirements
accordingly. The Agency believes that this change will provide
sufficient flexibility for systems to meet the public education
requirements without incurring the added burden of making substantial
changes to their billing processes.
One commenter seems to have misunderstood the requirements
pertaining to the timing of public education if a CWS is required to
repeat public education tasks pursuant to Sec. 141.85(c)(3). It is not
EPA's intention that such a system provide public education materials
within 60 days of any subsequent exceedance as well as repeat mailing
of these materials every 12 months based on the initial exceedance.
Rather, the Agency intends that public education materials be mailed
every 12 months for as long as the system continues to exceed the lead
action level. There is nothing in the regulation, however, that
precludes such a system from mailing the materials sooner than 12
months after the initial mailing, in order to synchronize the repeat
mailing with its billing cycle.
(C) Today's action. EPA is revising Sec. 141.85(c)(2)(i) to allow a
CWS the option of using a separate mailing when the system's billing
cycle does not include a mailing within 60 days of exceeding the action
level or where the system cannot insert information with the water
utility bill without making major changes in its billing system. The
separate mailing must occur within 60 days of exceeding the lead action
level and the system must include an alert in the package or on the
outside of the envelope containing the following message, in large
print: SOME HOMES IN THIS COMMUNITY HAVE ELEVATED LEAD LEVELS IN THEIR
DRINKING WATER. LEAD CAN POSE A SIGNIFICANT RISK TO YOUR HEALTH. PLEASE
READ THE ENCLOSED NOTICE FOR FURTHER INFORMATION.
EPA also is revising the introductory text of Secs. 141.85(c)(2)
and 141.85(c)(4) to clarify that the requirement to deliver public
education within 60 days of a lead action level exceedance applies only
in the following instances:
The first time the water system exceeds the lead action
level; or
The first time the water system again exceeds the lead
action level after one (or more) round(s) of tap water monitoring for
lead and copper where the system did not exceed the lead action level.
c. Schedule for Reporting Completion of Public Education Tasks.
(i) Proposed revision and background. The April 1996 Proposal
included a change in the deadline for a PWS to report completion of
public education tasks to the State. Under the 1991 Rule, the deadline
for reporting was December 31 of each year in which the system was
subject to the Rule's public education requirements. EPA proposed to
replace the December 31 deadline with a requirement for the water
system to report completion of public education tasks to the State
within 10 days after the date by which the system is required to
perform any such tasks. EPA proposed this revision because the Agency
believes that the schedule for water systems to report completion of
public education tasks by December 31 of each year (in which the system
is required to conduct any public education task) fails to provide the
States and EPA with information in a
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manner timely enough to oversee systems' compliance with the public
education program requirements.
(ii) Comments and analysis. Commenters were mixed in their support
for this revision. Those opposing it believe this will unnecessarily
increase burden. Of those supporting the revision, some support it as
written and some support it with changes. Two of those supporting it
with changes wanted the reporting time to increase from 10 days to 30
days, and one supporting it with changes expressed concern about
submitting a full packet of information each reporting period.
Several commenters who opposed this revision wanted to retain the
annual reporting requirement. EPA recognizes that this revision will
require those CWSs that must deliver public service announcements to
radio and television stations every six months to submit two letters to
the State during a calendar year instead of the single letter initially
required. However, EPA believes that accelerating the public education
reporting requirement will improve compliance because, in addition to
making the requirements easier to enforce, it also will encourage water
systems that exceed the lead action level to deliver the public
education program in a more timely manner.
EPA also believes it is appropriate to require reporting within 10
days after a public education task is scheduled to be completed. The 10
days allows systems time to assemble records and notify the State. Such
a requirement is consistent with the time frame allowed in other
reporting requirements, which allow 10 days for reporting to the State
after an action or the end of a reporting period. Very few systems
should be required to conduct public education tasks more than once per
year, since today's action also eliminates public service announcements
for small CWSs. In addition, since it is expected that not many systems
will continue to exceed the lead action level after installation of
OCCT (EPA, 1999b), EPA believes that this new requirement will not
increase burden for most systems.
As stated previously, one commenter suggested that, for ongoing
public education, it should not be necessary for a water system to
submit the full packet of information to the State for each subsequent
public education task to verify that all appropriate actions have been
taken, as long as the State receives a letter indicating that the
information has been sent out and the letter includes any changes to
the original information. The 1991 Rule requires that systems provide
sufficient documentation for States to determine whether all
appropriate actions have been taken. Today's action does not alter the
requirement that the demonstration be supported with appropriate
documentation. The Agency agrees that it may relieve some reporting
burden for systems if they are not required to submit the same
information more than once. On the other hand, EPA recognizes that
eliminating the requirement to submit the supporting materials each
time may increase the State burden to determine compliance since all of
the information may not be readily available at the time compliance is
assessed. For this reason, the Agency believes it is most appropriate
to leave the decision to the State about the need for repetitious
submission of the same information. If the State elects to eliminate
these repetitious submissions, however, EPA believes it is appropriate
to require the water system to certify that there have been no changes
in the supporting documentation. Regardless of the State's decision on
this matter, Sec. 142.14(d)(9) requires the State to maintain records
of system submittals which should contain the initial and any
subsequent public education information sent to the State. This
requirement is not affected by today's action.
(iii) Today's action. EPA is revising Sec. 141.90(f) to require any
water system, subject to the public education requirements of
Sec. 141.85, to report its completion of all required public education
tasks to the State within 10 days after the date by which the system is
required to complete semi-annual/annual public education tasks. The
Agency also is adding language to Sec. 141.90(f) that eliminates the
need for systems to submit supporting documentation that has been
submitted previously unless there is a change in the information or the
State requires that the documentation be included with each submission.
Systems that do not submit supporting documentation must certify that
there have been no changes to the information. A new
Sec. 142.14(d)(8)(xvii) requires States to maintain records of any
system-specific decisions made under Sec. 141.90(f) regarding the
resubmission of detailed documentation to demonstrate completion of
public education tasks.
5. Revisions to Sec. 141.86
a. Systems with an insufficient number of tier 1, 2, and 3 sample
sites.
(i) Proposed revision and background. The April 1996 Proposal
included new language at Sec. 141.86(a)(5) and Sec. 141.86(a)(7) which
instructs CWSs and NTNCWSs, respectively, to complete their sampling
pools with representative sites throughout the distribution system if
they are unable to locate a sufficient number of sample sites that meet
the tiering criteria specified in Sec. 141.86(a). EPA proposed this
revision to clarify that all systems are required to collect samples
from a minimum number of sites in accordance with Sec. 141.86(c), even
if a sufficient number of high-risk sites are not available.
(ii) Comments and analysis. Most commenters agreed with the
proposed new language. However, one commenter suggested that EPA
provide a clear definition or understanding of what constitutes a
``representative site''. The Agency believes that a ``representative
site,'' in this context, is a site in which the plumbing materials used
at that site would be commonly found at other sites served by the water
system. This definition for ``representative site'' is specific to
these two paragraphs and has been added to the regulatory language at
Sec. 141.86(a)(5) and Sec. 141.86(a)(7).
One commenter suggested that, rather than requiring a water system
to identify representative sites to complete its sampling pool if it
cannot identify a sufficient number of tier 1, 2, or 3 sites (if it is
a CWS) or a sufficient number of tier 1 or 2 sites (if it is a NTNCWS),
a CWS should be allowed to collect samples from only those sites
meeting the tier 1, 2, or 3 criteria, and a NTNCWS should be allowed to
collect samples from only those sites meeting the tier 1 or 2 criteria,
if they provide written justification, even if it means collecting
fewer than the minimum number of required samples.
EPA believes that if a water system collects fewer than the
required number of samples, the water system will not be able to
accurately characterize a lead or copper problem, if it exists. The
number of samples specified for initial monitoring, follow-up
monitoring and reduced monitoring was established to sufficiently
account for variability of lead and copper at taps while at the same
time being reasonable for a system to implement. Since there can be
variability in lead and copper levels at different taps within the same
building and even at the same tap at different points in time, EPA
believes that systems that do not have the requisite number of sites
must sample at multiple taps used to provide drinking water for human
consumption within available buildings. Systems with too few taps must
collect multiple samples from available taps used to provide drinking
water on different days during the monitoring period to meet the
monitoring requirements. The Agency therefore is not revising the
minimum
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site requirement to allow fewer samples to be collected.
(iii) Today's action. EPA has revised the language of
Sec. 141.86(a)(5) to require that a CWS complete its sampling pool with
representative sites throughout the distribution system if it does not
have a sufficient number of tier 1, 2, and 3 sampling sites available.
Likewise, the Agency has revised the language of Sec. 141.86(a)(7) to
require that a NTNCWS complete its sampling pool with representative
sites throughout the distribution system if it does not have a
sufficient number of tier 1 and tier 2 sites available. The revised
language of both provisions includes the definition of a
``representative site,'' discussed above, that applies to these
provisions.
While today's action provides systems the flexibility to use any
representative site, EPA strongly encourages CWSs that are unable to
locate a sufficient number of tier 1, 2, or 3 sample sites and NTNCWSs
that are unable to locate a sufficient number of tier 1 and 2 sample
sites to add to their sampling pool those sites with copper plumbing
installed subsequent to local implementation of the lead ban (typically
1988 or 1989), provided these sites can be considered
``representative''. Sample sites meeting the tier 1, 2, or 3 criteria
have a greater likelihood of experiencing high lead levels than sample
sites not meeting the tier 1, 2, or 3 criteria because these sites
typically contai
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