National Primary Drinking Water Regulations: Lead and Copper Rule Revisions; Delay of Effective and Compliance Dates, 14063-14066 [2021-05270]
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Federal Register / Vol. 86, No. 47 / Friday, March 12, 2021 / Proposed Rules
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart KK—Ohio
2. In § 52.1870, the table in paragraph
(c) is amended by removing the
undesignated heading ‘‘Chapter 3745–
71 Lead Emissions’’ and the entries for
‘‘3745–71–01’’, ‘‘3745–71–03’’, ‘‘3745–
71–05’’, and ‘‘3745–71–06’’.
■
[FR Doc. 2021–05159 Filed 3–11–21; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 141
[EPA–HQ–OW–2017–0300; FRL–10021–00–
OW]
RIN 2040–AF15
National Primary Drinking Water
Regulations: Lead and Copper Rule
Revisions; Delay of Effective and
Compliance Dates
Environmental Protection
Agency (EPA).
ACTION: Proposed rule; delay of effective
and compliance dates.
AGENCY:
The Environmental Protection
Agency (EPA or Agency) is proposing to
delay until December 16, 2021, the
effective date of the National Primary
Drinking Water Regulations: Lead and
Copper Rule Revisions (LCRR), which
was published in the Federal Register
on January 15, 2021. EPA is also
proposing to delay the January 16, 2024,
compliance date established in the
LCRR to September 16, 2024. The
proposed delay in the effective date is
consistent with presidential directives
issued on January 20, 2021, to heads of
Federal agencies to review certain
regulations, including the LCRR. The
delay will allow sufficient time for EPA
to complete its review of the rule in
accordance with those directives and
conduct important consultations with
affected parties. The proposed delay in
the compliance date of the LCRR
ensures that any delay in the effective
date will not reduce the time provided
for drinking water systems and primacy
states to take actions needed to assure
compliance with the LCRR.
DATES: Comments must be received on
or before April 12, 2021.
ADDRESSES: You may send comments,
identified by Docket ID No. EPA–HQ–
SUMMARY:
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OW–2017–0300, by any of the following
methods:
• Federal eRulemaking Portal:
https://www.regulations.gov/ (our
preferred method). Follow the online
instructions for submitting comments.
• Mail: U.S. Environmental
Protection Agency, EPA Docket Center,
Office of Water Docket, Mail Code
28221T, 1200 Pennsylvania Avenue
NW, Washington, DC 20460.
• Hand Delivery/Courier (by
scheduled appointment only): EPA
Docket Center, WJC West Building,
Room 3334, 1301 Constitution Avenue
NW, Washington, DC 20004. The Docket
Center’s hours of operations are 8:30
a.m.–4:30 p.m., Monday–Friday (except
Federal holidays).
Instructions: All submissions received
must include the Docket ID No. for this
rulemaking. Comments received may be
posted without change to https://
www.regulations.gov/, including any
personal information provided. For
detailed instructions on sending
comments and additional information
on the rulemaking process, see the
‘‘Public Participation’’ heading of the
SUPPLEMENTARY INFORMATION section of
this document. Out of an abundance of
caution for members of the public and
our staff, the EPA Docket Center and
Reading Room are closed to the public,
with limited exceptions, to reduce the
risk of transmitting COVID–19. Our
Docket Center staff will continue to
provide remote customer service via
email, phone, and webform. We
encourage the public to submit
comments via https://
www.regulations.gov/ or email, as there
may be a delay in processing mail and
faxes. Hand deliveries and couriers may
be received by scheduled appointment
only. For further information on EPA
Docket Center services and the current
status, please visit us online at https://
www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT:
Jeffrey Kempic, Office of Ground Water
and Drinking Water, Standards and Risk
Management Division, at (202) 564–
3632 or email kempic.jeffrey@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Purpose of the Regulatory Action
On January 20, 2021, President Biden
issued ‘‘Executive Order on Protecting
Public Health and the Environment and
Restoring Science to Tackle the Climate
Crisis.’’ (86 FR 7037, January 25, 2021)
(‘‘Executive Order 13990’’). Section 2 of
Executive Order 13990 directs the heads
of all agencies to immediately review
regulations that may be inconsistent
with, or present obstacles to, the policy
set forth in Section 1 of Executive Order
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13990. In the January 20, 2021 White
House ‘‘Fact Sheet: List of Agency
Actions for Review,’’ the ‘‘National
Primary Drinking Water Regulations:
Lead and Copper Rule Revisions’’
(LCRR) is specifically identified as an
agency action that will be reviewed in
conformance with Executive Order
13990 (https://www.whitehouse.gov/
briefing-room/statements-releases/2021/
01/20/fact-sheet-list-of-agency-actionsfor-review/). Also on January 20, 2021,
Ronald A. Klain, the Assistant to the
President and Chief of Staff, issued a
Memorandum for the Heads of
Executive Departments and Agencies
entitled, ‘‘Regulatory Freeze Pending
Review’’ (White House memorandum)
(86 FR 7424, January 28, 2021); the
memorandum directs agencies to
consider postponing the effective date of
regulations that have been published in
the Federal Register, but have not taken
effect, for the purpose of reviewing any
questions of fact, law, and policy the
rules may raise. In addition, the LCRR
has been challenged in court by the
Natural Resources Defense Council,
Newburgh Clean Water Project, NAACP,
Sierra Club, United Parents Against
Lead and the Attorneys General of New
York, California, Illinois, Maryland,
Minnesota, New Jersey, Oregon,
Pennsylvania, Wisconsin, and the
District of Columbia. Those cases have
been consolidated in Newburgh Clean
Water Project, et al. v EPA, No. 21–1019
(D.C. Cir.). EPA also received a letter on
March 4, 2021 from 36 organizations
and five individuals requesting that EPA
suspend the March 16, 2021 effective
date of the LCRR to review the rule and
initiate a new rulemaking. EPA also
received a letter on February 4, 2021
from the American Water Works
Association requesting that EPA not
delay the rule.
Consistent with Executive order
13990 and the White House
memorandum, EPA has decided to
review the LCRR, which was published
in the Federal Register on January 15,
2021. The Agency is simultaneously
publishing, in the ‘‘Final Rules’’ section
of this issue of the Federal Register, a
final rule providing for a short delay of
the LCRR’s effective date to June 17,
2021, while EPA seeks comment on this
proposal to extend the effective date
further to December 16, 2021. The
purpose of an extension of the effective
date to December 16, 2021, is to allow
EPA to conduct a review of the LCRR
and consult with stakeholders,
including those who have been
historically underserved by, or subject
to discrimination in, Federal policies
and programs prior to the LCRR going
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into effect. The LCRR made extensive
and significant changes to the existing
regulatory requirements, involving
complex factual, legal, and policy
issues. This proposed extension of the
effective date would allow EPA
adequate time to conduct a thorough
review of this complex set of
requirements to assess whether the
LCRR is inconsistent with, or presents
obstacles to, the policy set forth in
Section 1 of the Executive Order 13990,
and to consult with stakeholders in that
review prior to the rule going into effect.
The LCRR’s effective date (when the
rule is codified into the Code of Federal
Regulations) is different from the
compliance date. Section 1412(b)(10) of
the Safe Drinking Water Act specifies
that drinking water regulations shall
generally take effect (i.e., require
compliance) three years after the date
the regulation is promulgated. This 3year period is used by states to adopt
laws and regulations in order to obtain
primary enforcement responsibility for
the rule and by water systems to take
any necessary actions to meet the
compliance deadlines in the rule. EPA
is also proposing to extend the January
16, 2024, compliance dates in the LCRR
by nine months to September 16, 2024,
to correspond to the proposed delay in
the effective date (nine months from the
original effective date of March 16,
2021). This proposed extension would
have the effect of maintaining the same
time period between the effective date
and the compliance date in the LCRR
that was published on January 15, 2021.
EPA expects that the duration of the
compliance date extension would
provide drinking water systems with
adequate time to take actions needed to
assure compliance with the LCRR after
it takes effect. It should also provide
states with primary enforcement
responsibility adequate time to revise
their primacy program in light of EPA’s
final LCRR.
Importance of EPA’s Review of the LCCR
for Protection of Public Health
The impact of lead exposure,
including through drinking water, is a
public health issue of paramount
importance and its adverse effects on
children and the general population are
serious and well known. For example,
exposure to lead is known to present
serious health risks to the brain and
nervous system of children. Lead
exposure causes damage to the brain
and kidneys and can interfere with the
production of red blood cells that carry
oxygen to all parts of the body. Lead has
acute and chronic impacts on the body.
The most robustly studied and most
susceptible subpopulations are the
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developing fetus, infants, and young
children. Even low level lead exposure
is of particular concern to children
because their growing bodies absorb
more lead than adults do, and their
brains and nervous systems are more
sensitive to the damaging effects of lead.
EPA estimates that drinking water can
make up 20 percent or more of a
person’s total exposure to lead. Infants
who consume mostly formula mixed
with tap water can, depending on the
level of lead in the system and other
sources of lead in the home, receive 40
percent to 60 percent of their exposure
to lead from drinking water used in the
formula. Scientists have linked lead’s
effects on the brain with lowered
intelligence quotient (IQ) and attention
disorders in children. Young children
and infants are particularly vulnerable
to lead because the physical and
behavioral effects of lead occur at lower
exposure levels in children than in
adults. During pregnancy, lead exposure
may affect prenatal brain development.
Lead is stored in the bones and it can
be released later in life. Even at low
levels of lead in blood, there is an
increased risk of health effects in
children (e.g., less than 5 micrograms
per deciliter) and adults (e.g., less than
10 micrograms per deciliter).
The 2013 Integrated Science
Assessment for Lead and the HHS
National Toxicology Program
Monograph on Health Effects of LowLevel Lead have both documented the
association between lead and adverse
cardiovascular effects, renal effects,
reproductive effects, immunological
effects, neurological effects, and cancer.
EPA’s Integrated Risk Information
System (IRIS) Chemical Assessment
Summary provides additional health
effects information on lead.
Because of disparities in the quality of
housing, community economic status,
and access to medical care, lead in
drinking water (and other media)
disproportionately affects lower-income
people. Minority and low-income
children are more likely to live in
proximity to lead-emitting industries
and to live in urban areas, which are
more likely to have contaminated soils,
contributing to their overall exposure.
Additionally, non-Hispanic black
individuals are more than twice as
likely as non-Hispanic whites to live in
moderately or severely substandard
housing which is more likely to present
risks from deteriorating lead based
paint. The disparate impacts for lowincome and minority populations may
be exacerbated because of their more
limited resources for remediating the
sources of lead such as lead service
lines.
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For example, stakeholders have raised
concerns that to the extent water
systems rely on homeowners to pay for
replacement of privately owned
portions of lines, lower-income
homeowners will be unable to replace
lines, resulting in disparate levels of
protection. Moreover, the crisis in Flint,
Michigan, has brought increased
attention to the challenge of lead in
drinking water systems across the
country.
Given the paramount significance to
the public’s health for ensuring that lead
in drinking water is adequately
addressed under the Safe Drinking
Water Act, and the concerns raised by
litigants and other stakeholders about
the LCRR, it is critically important that
EPA’s review of the LCRR be deliberate
and have the benefit of meaningful
engagement with the affected public,
including underserved communities
disproportionately affected by exposure
to lead.
In conducting its review, EPA will
carefully consider the concerns raised
by stakeholders, including
disadvantaged communities that have
been disproportionately impacted, states
that administer national primary
drinking water regulations, consumer
and environmental organizations, water
systems and other organizations. There
is a wide range of stakeholder views
regarding the LCRR; some argue that it
does not sufficiently protect the public
health while others raise concerns that
the rule imposes burdens that states and
water systems do not have the resources
to address. For example, a primary
source of lead exposure in drinking
water is lead service lines. Stakeholders
have raised concerns that despite the
significance of this source of lead, the
LCRR fails to require, or create adequate
incentives, for public water systems to
replace all of their service lines. In
addition, stakeholders have raised
concerns that portions of many lead
service lines are privately owned and
disadvantaged homeowners may not be
able to afford the cost of replacing their
portion of the lead service line and may
not have this significant source of lead
exposure removed if their water system
does not provide financial assistance.
Other stakeholders have raised concerns
regarding the significant costs public
water systems and communities would
face to replace all lead service lines.
Based upon information from the
Economic Analysis for the Final Lead
and Copper Rule, EPA estimates that
there are between 6.3 and 9.3 million
lead service lines nationally and the
cost of replacing all of these lines is
between $25 and $56 billion.
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Another key element of the LCRR
relates to requiring public water systems
to conduct an inventory of lead service
lines so that systems know the scope of
the problem, can identify potential
sampling locations and can
communicate with households that are
or may be served by lead service lines
to inform them of the actions they may
take to reduce their risks. Some
stakeholders have raised concerns that
the rule’s inventory requirements are
not sufficiently rigorous to ensure that
consumers have access to useful
information about the locations of lead
service lines in their community. Other
stakeholders have raised concerns that
water systems do not have accurate
records about the composition of
privately owned portions of service
lines and that have concerns about
public water systems publicly releasing
information regarding privately owned
property.
A core component of the LCRR is
maintaining an ‘‘action level’’ of 15
parts per billion (ppb), which serves as
a trigger for certain actions by public
water systems such as lead service line
replacement and public education. The
LCRR did not modify the existing lead
action level but established a 10 ppb
‘‘trigger level’’ to require public water
systems to initiate actions to decrease
their lead levels and take proactive steps
to remove lead from the distribution
system. Some stakeholders support this
new trigger level while others argue that
EPA has unnecessarily complicated the
regulation. Some stakeholders suggest
that the Agency should eliminate the
new trigger level and instead lower the
15 ppb action level.
Some stakeholders have indicated
that the Agency has provided too much
flexibility for small water systems and
that it is feasible for many of the
systems serving 10,000 or fewer
customers to take more actions to
reduce drinking water lead levels than
required under the LCRR. Other
stakeholders have highlighted the
limited technical, managerial, and
financial capacity of small water
systems and support the flexibilities
provided by the LCRR to all of these
small systems.
Stakeholders have divergent views of
the school and childcare sampling
provisions of the LCRR; some believe
that the sampling should be more
extensive, while others do not believe
that community water systems should
be responsible for it and that such a
program would be more effectively
carried out by the school and childcare
facilities.
Finally, some stakeholders have
expressed concerns that the Agency did
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not provide adequate opportunities for a
public hearing and did not provide a
complete or reliable evaluation of the
costs and benefits of the proposed
LCRR.
The significant issues identified by
stakeholders warrant careful and
considerate review of the rule, as well
as relief from the compliance deadlines
as EPA considers the issues raised by
stakeholders and litigants. After
publication of a final national primary
drinking water rule, states and water
systems commence activities to achieve
compliance with the rule by the
deadline established in the LCRR based
on the requirements of Section
1412(b)(10) of SDWA. States will
undertake actions to obtain primacy to
implement the regulations and water
systems will begin the actions to
prepare lead service line inventories,
and as appropriate to prepare lead
service line replacement plans. The
postponement of compliance dates
through this action is intended as a
stopgap measure to prevent the
unnecessary expenditure of resources by
water systems and states on those efforts
until EPA completes its review of the
LCRR and can provide some certainty
that the LCRR requirements will not be
changed. Without a delay in the
effective date of the rule, regulated
entities may make decisions and spend
scarce resources on compliance
obligations that could change at the end
of EPA’s review period.
Section 1412(b)(9) of the Safe
Drinking Water Act authorizes EPA to
review and revise national primary
drinking water rules ‘‘as appropriate’’
and directs that any revision ‘‘shall
maintain, or provide for greater,
protection of the health of persons.’’ 42
U.S.C. 300g–1(b)(9). This proposed
delay is consistent with EPA’s exercise
of this discretionary authority to revise
its drinking water rules. As noted above,
some stakeholders have raised questions
about the lead service line replacement
requirements and the small system
flexibility requirements, including
whether they are consistent with the
‘‘anti-backsliding’’ standard in section
1412(b)(9). EPA would evaluate those
concerns during its review of the rule.
EPA is requesting public comment on
this additional 6-month extension of the
June 17, 2021, effective date to
December 16, 2021, and the 9-month
extension of the current compliance
date of January 16, 2024, to September
16, 2024, respectively. EPA will engage
with stakeholders during the 9 month
review period to evaluate the rule and
determine whether to initiate a process
to revise components of the rule. If EPA
decides it is appropriate to propose
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14065
revisions to the rule, it will consider
whether to further extend compliance
dates for those specific obligations.
Specifically, EPA is seeking comment
on the duration of the effective date and
compliance date extensions and
whether the compliance date extension
should apply to the entire LCRR or
certain components of the final rule.
EPA intends to issue a final decision on
this proposal prior to the June 17, 2021,
effective date promulgated in the ‘‘Final
Rules’’ section of this issue of the
Federal Register.
II. Public Participation
Submit your written comments,
identified by Docket ID No. HQ–OW–
2017–0300 at https://
www.regulations.gov (our preferred
method), or the other methods
identified in the ADDRESSES section.
Once submitted, comments cannot be
edited or removed from the docket. EPA
may publish any comment received to
its public docket. Do not submit to
EPA’s docket at https://
www.regulations.gov any information
you consider to be Confidential
Business Information (CBI) or other
information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. EPA will generally not consider
comments or comment contents located
outside of the primary submission (i.e.,
on the web, cloud, or other file sharing
system). For additional submission
methods, the full EPA public comment
policy, information about CBI or
multimedia submissions, and general
guidance on making effective
comments, please visit https://
www.epa.gov/dockets/commenting-epadockets.
EPA is temporarily suspending its
Docket Center and Reading Room for
public visitors, with limited exceptions,
to reduce the risk of transmitting
COVID–19. Our Docket Center staff will
continue to provide remote customer
service via email, phone, and webform.
We encourage the public to submit
comments via https://
www.regulations.gov/ as there may be a
delay in processing mail and faxes.
Hand deliveries or couriers will be
received by scheduled appointment
only. For further information and
updates on EPA Docket Center services,
please visit us online at https://
www.epa.gov/dockets. EPA continues to
carefully and continuously monitor
information from the Centers for Disease
Control and Prevention (CDC), local area
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health departments, and our Federal
partners so that we can respond rapidly
as conditions change regarding COVID–
19.
13175 because it would not have a
substantial direct effect on tribes or on
the relationship between the national
government and tribes.
III. Statutory and Executive Order
Reviews
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This action is a significant regulatory
action that was submitted to the Office
of Management and Budget (OMB) for
review. Any changes made in response
to OMB recommendations have been
documented in the docket.
B. Paperwork Reduction Act (PRA)
This action does not impose an
information collection burden under the
PRA. This action does not contain any
information collection activities.
C. Regulatory Flexibility Act (RFA)
I certify that this action if finalized
would not have a significant economic
impact on a substantial number of small
entities under the RFA. In making this
determination, the impact of concern is
any significant adverse economic
impact on small entities. An agency may
certify that a rule will not have a
significant economic impact on a
substantial number of small entities if
the rule relieves regulatory burden, has
no net burden or otherwise has a
positive economic effect on the small
entities subject to the rule. This
proposed action would not impose any
requirements on anyone, including
small entities.
D. Unfunded Mandates Reform Act
(UMRA)
This proposed action does not contain
any unfunded mandate as described in
UMRA, 2 U.S.C. 1531–1538. The
proposed action would impose no
enforceable duty on any State, local or
tribal governments or the private sector.
E. Executive Order 13132: Federalism
This proposed action does not have
federalism implications. It would not
have a substantial direct effect on the
states, on the relationship between the
national government and the states, or
on the distribution of power and
responsibilities among the various
levels of government.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This proposed action does not have
tribal implications as specified in
Executive Order 13175. This proposed
action is not subject to Executive Order
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EPA interprets Executive Order 13045
as applying only to those regulatory
actions that are economically
significant, per the definition of
‘‘covered regulatory action’’ in Section
2–202 of the Executive Order. This
proposed action is not subject to
Executive Order 13045 because the
proposed delays of the effective date
and the compliance date are not
economically significant.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This proposed action is not subject to
Executive Order 13211, because it is not
a significant regulatory action under
Executive Order 12866.
I. National Technology Transfer and
Advancement Act (NTTAA)
This proposed rulemaking does not
involve technical standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
This proposed action is not subject to
Executive Order 12898 (59 Fed 7629,
Feb. 16, 1994) because it does not
establish an environmental health or
safety standard.
Jane Nishida,
Acting Administrator.
[FR Doc. 2021–05270 Filed 3–11–21; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 257
[EPA–HQ–OLEM–2020–0463; FRL–10021–
05–OLEM]
Hazardous and Solid Waste
Management System: Disposal of Coal
Combustion Residuals From Electric
Utilities; Reconsideration of Beneficial
Use Criteria and Piles; Notification of
Data Availability; Reopening of
Comment Period
Environmental Protection
Agency (EPA).
AGENCY:
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Proposed rule; notice of data
availability; request for comment;
reopening of comment period.
ACTION:
The Environmental Protection
Agency (EPA or the Agency) is
reopening the comment period on the
notice of data availability for its
reconsideration of the beneficial use
criteria and provisions for piles of coal
combustion residuals (CCR). The
original notice of data availability was
published on December 22, 2020 with a
60-day public comment period closing
February 22, 2021. With this notice,
EPA is reopening the public comment
period for an additional 60 days, from
March 12, 2021 to May 11, 2021.
DATES: Comments must be received on
or before May 11, 2021.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OLEM–2020–0463.
Follow the detailed instructions
provided under ADDRESSES in the
Federal Register document of December
22, 2020 (85 FR 83478). Out of an
abundance of caution for members of
the public and our staff, the EPA Docket
Center and Reading Room are closed to
the public, with limited exceptions, to
reduce the risk of transmitting COVID–
19. Our Docket Center staff will
continue to provide remote customer
service via email, phone, and webform.
We encourage the public to submit
comments via https://
www.regulations.gov/ or email, as there
may be a delay in processing mail and
faxes. Hand deliveries and couriers may
be received by scheduled appointment
only. For further information on EPA
Docket Center services and the current
status, please visit us online at https://
www.epa.gov/dockets. If you have
questions, consult the technical person
listed under FOR FURTHER INFORMATION
CONTACT.
FOR FURTHER INFORMATION CONTACT: Rita
Chow, Office of Resource Conservation
and Recovery, Resource Conservation
and Sustainability Division,
Environmental Protection Agency, 1200
Pennsylvania Avenue NW, MC: 5306P,
Washington, DC 20460; telephone
number: (703) 308–6158; email address:
chow.rita@epa.gov. For more
information on this action please visit
https://www.epa.gov/coalash.
SUPPLEMENTARY INFORMATION: In the
April 17, 2015 Disposal of Coal
Combustion Residuals from Electric
Utilities final rule, EPA established
national criteria for CCR landfills and
surface impoundments. The final rule
also established a beneficial use
definition to distinguish legitimate
beneficial use from disposal and
SUMMARY:
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Agencies
[Federal Register Volume 86, Number 47 (Friday, March 12, 2021)]
[Proposed Rules]
[Pages 14063-14066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05270]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 141
[EPA-HQ-OW-2017-0300; FRL-10021-00-OW]
RIN 2040-AF15
National Primary Drinking Water Regulations: Lead and Copper Rule
Revisions; Delay of Effective and Compliance Dates
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; delay of effective and compliance dates.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA or Agency) is
proposing to delay until December 16, 2021, the effective date of the
National Primary Drinking Water Regulations: Lead and Copper Rule
Revisions (LCRR), which was published in the Federal Register on
January 15, 2021. EPA is also proposing to delay the January 16, 2024,
compliance date established in the LCRR to September 16, 2024. The
proposed delay in the effective date is consistent with presidential
directives issued on January 20, 2021, to heads of Federal agencies to
review certain regulations, including the LCRR. The delay will allow
sufficient time for EPA to complete its review of the rule in
accordance with those directives and conduct important consultations
with affected parties. The proposed delay in the compliance date of the
LCRR ensures that any delay in the effective date will not reduce the
time provided for drinking water systems and primacy states to take
actions needed to assure compliance with the LCRR.
DATES: Comments must be received on or before April 12, 2021.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OW-2017-0300, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Office of Water Docket, Mail Code 28221T, 1200 Pennsylvania
Avenue NW, Washington, DC 20460.
Hand Delivery/Courier (by scheduled appointment only): EPA
Docket Center, WJC West Building, Room 3334, 1301 Constitution Avenue
NW, Washington, DC 20004. The Docket Center's hours of operations are
8:30 a.m.-4:30 p.m., Monday-Friday (except Federal holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to https://www.regulations.gov/, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document. Out
of an abundance of caution for members of the public and our staff, the
EPA Docket Center and Reading Room are closed to the public, with
limited exceptions, to reduce the risk of transmitting COVID-19. Our
Docket Center staff will continue to provide remote customer service
via email, phone, and webform. We encourage the public to submit
comments via https://www.regulations.gov/ or email, as there may be a
delay in processing mail and faxes. Hand deliveries and couriers may be
received by scheduled appointment only. For further information on EPA
Docket Center services and the current status, please visit us online
at https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: Jeffrey Kempic, Office of Ground Water
and Drinking Water, Standards and Risk Management Division, at (202)
564-3632 or email [email protected].
SUPPLEMENTARY INFORMATION:
I. Purpose of the Regulatory Action
On January 20, 2021, President Biden issued ``Executive Order on
Protecting Public Health and the Environment and Restoring Science to
Tackle the Climate Crisis.'' (86 FR 7037, January 25, 2021)
(``Executive Order 13990''). Section 2 of Executive Order 13990 directs
the heads of all agencies to immediately review regulations that may be
inconsistent with, or present obstacles to, the policy set forth in
Section 1 of Executive Order 13990. In the January 20, 2021 White House
``Fact Sheet: List of Agency Actions for Review,'' the ``National
Primary Drinking Water Regulations: Lead and Copper Rule Revisions''
(LCRR) is specifically identified as an agency action that will be
reviewed in conformance with Executive Order 13990 (https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/). Also on January 20, 2021,
Ronald A. Klain, the Assistant to the President and Chief of Staff,
issued a Memorandum for the Heads of Executive Departments and Agencies
entitled, ``Regulatory Freeze Pending Review'' (White House memorandum)
(86 FR 7424, January 28, 2021); the memorandum directs agencies to
consider postponing the effective date of regulations that have been
published in the Federal Register, but have not taken effect, for the
purpose of reviewing any questions of fact, law, and policy the rules
may raise. In addition, the LCRR has been challenged in court by the
Natural Resources Defense Council, Newburgh Clean Water Project, NAACP,
Sierra Club, United Parents Against Lead and the Attorneys General of
New York, California, Illinois, Maryland, Minnesota, New Jersey,
Oregon, Pennsylvania, Wisconsin, and the District of Columbia. Those
cases have been consolidated in Newburgh Clean Water Project, et al. v
EPA, No. 21-1019 (D.C. Cir.). EPA also received a letter on March 4,
2021 from 36 organizations and five individuals requesting that EPA
suspend the March 16, 2021 effective date of the LCRR to review the
rule and initiate a new rulemaking. EPA also received a letter on
February 4, 2021 from the American Water Works Association requesting
that EPA not delay the rule.
Consistent with Executive order 13990 and the White House
memorandum, EPA has decided to review the LCRR, which was published in
the Federal Register on January 15, 2021. The Agency is simultaneously
publishing, in the ``Final Rules'' section of this issue of the Federal
Register, a final rule providing for a short delay of the LCRR's
effective date to June 17, 2021, while EPA seeks comment on this
proposal to extend the effective date further to December 16, 2021. The
purpose of an extension of the effective date to December 16, 2021, is
to allow EPA to conduct a review of the LCRR and consult with
stakeholders, including those who have been historically underserved
by, or subject to discrimination in, Federal policies and programs
prior to the LCRR going
[[Page 14064]]
into effect. The LCRR made extensive and significant changes to the
existing regulatory requirements, involving complex factual, legal, and
policy issues. This proposed extension of the effective date would
allow EPA adequate time to conduct a thorough review of this complex
set of requirements to assess whether the LCRR is inconsistent with, or
presents obstacles to, the policy set forth in Section 1 of the
Executive Order 13990, and to consult with stakeholders in that review
prior to the rule going into effect.
The LCRR's effective date (when the rule is codified into the Code
of Federal Regulations) is different from the compliance date. Section
1412(b)(10) of the Safe Drinking Water Act specifies that drinking
water regulations shall generally take effect (i.e., require
compliance) three years after the date the regulation is promulgated.
This 3-year period is used by states to adopt laws and regulations in
order to obtain primary enforcement responsibility for the rule and by
water systems to take any necessary actions to meet the compliance
deadlines in the rule. EPA is also proposing to extend the January 16,
2024, compliance dates in the LCRR by nine months to September 16,
2024, to correspond to the proposed delay in the effective date (nine
months from the original effective date of March 16, 2021). This
proposed extension would have the effect of maintaining the same time
period between the effective date and the compliance date in the LCRR
that was published on January 15, 2021. EPA expects that the duration
of the compliance date extension would provide drinking water systems
with adequate time to take actions needed to assure compliance with the
LCRR after it takes effect. It should also provide states with primary
enforcement responsibility adequate time to revise their primacy
program in light of EPA's final LCRR.
Importance of EPA's Review of the LCCR for Protection of Public Health
The impact of lead exposure, including through drinking water, is a
public health issue of paramount importance and its adverse effects on
children and the general population are serious and well known. For
example, exposure to lead is known to present serious health risks to
the brain and nervous system of children. Lead exposure causes damage
to the brain and kidneys and can interfere with the production of red
blood cells that carry oxygen to all parts of the body. Lead has acute
and chronic impacts on the body. The most robustly studied and most
susceptible subpopulations are the developing fetus, infants, and young
children. Even low level lead exposure is of particular concern to
children because their growing bodies absorb more lead than adults do,
and their brains and nervous systems are more sensitive to the damaging
effects of lead. EPA estimates that drinking water can make up 20
percent or more of a person's total exposure to lead. Infants who
consume mostly formula mixed with tap water can, depending on the level
of lead in the system and other sources of lead in the home, receive 40
percent to 60 percent of their exposure to lead from drinking water
used in the formula. Scientists have linked lead's effects on the brain
with lowered intelligence quotient (IQ) and attention disorders in
children. Young children and infants are particularly vulnerable to
lead because the physical and behavioral effects of lead occur at lower
exposure levels in children than in adults. During pregnancy, lead
exposure may affect prenatal brain development. Lead is stored in the
bones and it can be released later in life. Even at low levels of lead
in blood, there is an increased risk of health effects in children
(e.g., less than 5 micrograms per deciliter) and adults (e.g., less
than 10 micrograms per deciliter).
The 2013 Integrated Science Assessment for Lead and the HHS
National Toxicology Program Monograph on Health Effects of Low-Level
Lead have both documented the association between lead and adverse
cardiovascular effects, renal effects, reproductive effects,
immunological effects, neurological effects, and cancer. EPA's
Integrated Risk Information System (IRIS) Chemical Assessment Summary
provides additional health effects information on lead.
Because of disparities in the quality of housing, community
economic status, and access to medical care, lead in drinking water
(and other media) disproportionately affects lower-income people.
Minority and low-income children are more likely to live in proximity
to lead-emitting industries and to live in urban areas, which are more
likely to have contaminated soils, contributing to their overall
exposure. Additionally, non-Hispanic black individuals are more than
twice as likely as non-Hispanic whites to live in moderately or
severely substandard housing which is more likely to present risks from
deteriorating lead based paint. The disparate impacts for low-income
and minority populations may be exacerbated because of their more
limited resources for remediating the sources of lead such as lead
service lines.
For example, stakeholders have raised concerns that to the extent
water systems rely on homeowners to pay for replacement of privately
owned portions of lines, lower-income homeowners will be unable to
replace lines, resulting in disparate levels of protection. Moreover,
the crisis in Flint, Michigan, has brought increased attention to the
challenge of lead in drinking water systems across the country.
Given the paramount significance to the public's health for
ensuring that lead in drinking water is adequately addressed under the
Safe Drinking Water Act, and the concerns raised by litigants and other
stakeholders about the LCRR, it is critically important that EPA's
review of the LCRR be deliberate and have the benefit of meaningful
engagement with the affected public, including underserved communities
disproportionately affected by exposure to lead.
In conducting its review, EPA will carefully consider the concerns
raised by stakeholders, including disadvantaged communities that have
been disproportionately impacted, states that administer national
primary drinking water regulations, consumer and environmental
organizations, water systems and other organizations. There is a wide
range of stakeholder views regarding the LCRR; some argue that it does
not sufficiently protect the public health while others raise concerns
that the rule imposes burdens that states and water systems do not have
the resources to address. For example, a primary source of lead
exposure in drinking water is lead service lines. Stakeholders have
raised concerns that despite the significance of this source of lead,
the LCRR fails to require, or create adequate incentives, for public
water systems to replace all of their service lines. In addition,
stakeholders have raised concerns that portions of many lead service
lines are privately owned and disadvantaged homeowners may not be able
to afford the cost of replacing their portion of the lead service line
and may not have this significant source of lead exposure removed if
their water system does not provide financial assistance. Other
stakeholders have raised concerns regarding the significant costs
public water systems and communities would face to replace all lead
service lines. Based upon information from the Economic Analysis for
the Final Lead and Copper Rule, EPA estimates that there are between
6.3 and 9.3 million lead service lines nationally and the cost of
replacing all of these lines is between $25 and $56 billion.
[[Page 14065]]
Another key element of the LCRR relates to requiring public water
systems to conduct an inventory of lead service lines so that systems
know the scope of the problem, can identify potential sampling
locations and can communicate with households that are or may be served
by lead service lines to inform them of the actions they may take to
reduce their risks. Some stakeholders have raised concerns that the
rule's inventory requirements are not sufficiently rigorous to ensure
that consumers have access to useful information about the locations of
lead service lines in their community. Other stakeholders have raised
concerns that water systems do not have accurate records about the
composition of privately owned portions of service lines and that have
concerns about public water systems publicly releasing information
regarding privately owned property.
A core component of the LCRR is maintaining an ``action level'' of
15 parts per billion (ppb), which serves as a trigger for certain
actions by public water systems such as lead service line replacement
and public education. The LCRR did not modify the existing lead action
level but established a 10 ppb ``trigger level'' to require public
water systems to initiate actions to decrease their lead levels and
take proactive steps to remove lead from the distribution system. Some
stakeholders support this new trigger level while others argue that EPA
has unnecessarily complicated the regulation. Some stakeholders suggest
that the Agency should eliminate the new trigger level and instead
lower the 15 ppb action level.
Some stakeholders have indicated that the Agency has provided too
much flexibility for small water systems and that it is feasible for
many of the systems serving 10,000 or fewer customers to take more
actions to reduce drinking water lead levels than required under the
LCRR. Other stakeholders have highlighted the limited technical,
managerial, and financial capacity of small water systems and support
the flexibilities provided by the LCRR to all of these small systems.
Stakeholders have divergent views of the school and childcare
sampling provisions of the LCRR; some believe that the sampling should
be more extensive, while others do not believe that community water
systems should be responsible for it and that such a program would be
more effectively carried out by the school and childcare facilities.
Finally, some stakeholders have expressed concerns that the Agency
did not provide adequate opportunities for a public hearing and did not
provide a complete or reliable evaluation of the costs and benefits of
the proposed LCRR.
The significant issues identified by stakeholders warrant careful
and considerate review of the rule, as well as relief from the
compliance deadlines as EPA considers the issues raised by stakeholders
and litigants. After publication of a final national primary drinking
water rule, states and water systems commence activities to achieve
compliance with the rule by the deadline established in the LCRR based
on the requirements of Section 1412(b)(10) of SDWA. States will
undertake actions to obtain primacy to implement the regulations and
water systems will begin the actions to prepare lead service line
inventories, and as appropriate to prepare lead service line
replacement plans. The postponement of compliance dates through this
action is intended as a stopgap measure to prevent the unnecessary
expenditure of resources by water systems and states on those efforts
until EPA completes its review of the LCRR and can provide some
certainty that the LCRR requirements will not be changed. Without a
delay in the effective date of the rule, regulated entities may make
decisions and spend scarce resources on compliance obligations that
could change at the end of EPA's review period.
Section 1412(b)(9) of the Safe Drinking Water Act authorizes EPA to
review and revise national primary drinking water rules ``as
appropriate'' and directs that any revision ``shall maintain, or
provide for greater, protection of the health of persons.'' 42 U.S.C.
300g-1(b)(9). This proposed delay is consistent with EPA's exercise of
this discretionary authority to revise its drinking water rules. As
noted above, some stakeholders have raised questions about the lead
service line replacement requirements and the small system flexibility
requirements, including whether they are consistent with the ``anti-
backsliding'' standard in section 1412(b)(9). EPA would evaluate those
concerns during its review of the rule.
EPA is requesting public comment on this additional 6-month
extension of the June 17, 2021, effective date to December 16, 2021,
and the 9-month extension of the current compliance date of January 16,
2024, to September 16, 2024, respectively. EPA will engage with
stakeholders during the 9 month review period to evaluate the rule and
determine whether to initiate a process to revise components of the
rule. If EPA decides it is appropriate to propose revisions to the
rule, it will consider whether to further extend compliance dates for
those specific obligations.
Specifically, EPA is seeking comment on the duration of the
effective date and compliance date extensions and whether the
compliance date extension should apply to the entire LCRR or certain
components of the final rule. EPA intends to issue a final decision on
this proposal prior to the June 17, 2021, effective date promulgated in
the ``Final Rules'' section of this issue of the Federal Register.
II. Public Participation
Submit your written comments, identified by Docket ID No. HQ-OW-
2017-0300 at https://www.regulations.gov (our preferred method), or the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. EPA may publish
any comment received to its public docket. Do not submit to EPA's
docket at https://www.regulations.gov any information you consider to
be Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
EPA is temporarily suspending its Docket Center and Reading Room
for public visitors, with limited exceptions, to reduce the risk of
transmitting COVID-19. Our Docket Center staff will continue to provide
remote customer service via email, phone, and webform. We encourage the
public to submit comments via https://www.regulations.gov/ as there may
be a delay in processing mail and faxes. Hand deliveries or couriers
will be received by scheduled appointment only. For further information
and updates on EPA Docket Center services, please visit us online at
https://www.epa.gov/dockets. EPA continues to carefully and
continuously monitor information from the Centers for Disease Control
and Prevention (CDC), local area
[[Page 14066]]
health departments, and our Federal partners so that we can respond
rapidly as conditions change regarding COVID-19.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review. Any changes
made in response to OMB recommendations have been documented in the
docket.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA. This action does not contain any information collection
activities.
C. Regulatory Flexibility Act (RFA)
I certify that this action if finalized would not have a
significant economic impact on a substantial number of small entities
under the RFA. In making this determination, the impact of concern is
any significant adverse economic impact on small entities. An agency
may certify that a rule will not have a significant economic impact on
a substantial number of small entities if the rule relieves regulatory
burden, has no net burden or otherwise has a positive economic effect
on the small entities subject to the rule. This proposed action would
not impose any requirements on anyone, including small entities.
D. Unfunded Mandates Reform Act (UMRA)
This proposed action does not contain any unfunded mandate as
described in UMRA, 2 U.S.C. 1531-1538. The proposed action would impose
no enforceable duty on any State, local or tribal governments or the
private sector.
E. Executive Order 13132: Federalism
This proposed action does not have federalism implications. It
would not have a substantial direct effect on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This proposed action does not have tribal implications as specified
in Executive Order 13175. This proposed action is not subject to
Executive Order 13175 because it would not have a substantial direct
effect on tribes or on the relationship between the national government
and tribes.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are economically significant, per the
definition of ``covered regulatory action'' in Section 2-202 of the
Executive Order. This proposed action is not subject to Executive Order
13045 because the proposed delays of the effective date and the
compliance date are not economically significant.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This proposed action is not subject to Executive Order 13211,
because it is not a significant regulatory action under Executive Order
12866.
I. National Technology Transfer and Advancement Act (NTTAA)
This proposed rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
This proposed action is not subject to Executive Order 12898 (59
Fed 7629, Feb. 16, 1994) because it does not establish an environmental
health or safety standard.
Jane Nishida,
Acting Administrator.
[FR Doc. 2021-05270 Filed 3-11-21; 8:45 am]
BILLING CODE 6560-50-P