National Primary Drinking Water Regulations: Lead and Copper Rule Revisions; Delay of Effective Date, 14003-14006 [2021-05271]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 86, Number 47 (Friday, March 12, 2021)]
[Rules and Regulations]
[Pages 14003-14006]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05271]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 141

[EPA-OW-2017-0300; FRL-10020-99-OW]
RIN 2040-AF15


National Primary Drinking Water Regulations: Lead and Copper Rule 
Revisions; Delay of Effective Date

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; delay of effective date.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is issuing 
a short delay of the March 16, 2021, effective date of the National 
Primary Drinking Water Regulations: Lead and Copper Rule Revisions 
(LCRR), published in the Federal Register on January 15, 2021. The LCRR 
will now become effective on June 17, 2021. This final rule does not 
change the compliance date of January 16, 2024. This 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 sole purpose of this delay is to 
enable EPA to take public comment on a longer extension of the 
effective date for EPA to undertake its review of the rule in a 
deliberate and thorough manner consistent with the public health 
purposes of the Safe Drinking Water Act and the terms and objectives of 
recent Presidential directives and in consultation with affected 
stakeholders.

DATES: As of March 12, 2021, the effective date of the final rule 
published January 15, 2021, at 86 FR 4198, is delayed until June 17, 
2021.

ADDRESSES: The docket for this action, identified by docket 
identification (ID) number EPA-HQ-OW-2017-0300, is available at https://www.regulations.gov. 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. For further 
information about EPA Docket Center Services and the current status, 
please visit us online at https://www.epa.gov/dockets. If you are 
having trouble locating EPA docket materials, contact the EPA Reading 
Room Staff for assistance by calling (202) 566-1744, or send a message 
to Dockets Customer Service ([email protected]).

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: On January 20, 2021, President Biden issued 
an ``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 
memo) (86 FR 7424, January 28, 2021); the memorandum directs agencies 
to consider postponing the effective date of regulations, like the 
LCRR, 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 to these presidential 
directives, the LCRR has been challenged in court by 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. The litigants and other stakeholders raise 
concerns about key aspects of the rule, including whether to have a 
maximum contaminant level, the action level, the pace of lead service 
line replacements, and the requirements for small water systems, as 
well as compliance with SDWA rulemaking requirements such as those 
governing risk assessment, management and communication, and the 
opportunity for a public hearing. EPA also received a letter on 
February 4, 2021, from the American Water Works Association requesting 
that EPA not delay the rule.

I. Reason for This Action

    Consistent with the above directives, EPA is reviewing the LCRR. In 
order to ensure that there is an opportunity for engagement with the 
public in this review, including public input on the critically 
important public health issues associated with lead in drinking water, 
and to enable EPA to complete its review of the rule in a deliberate 
and thorough manner consistent with the public health purposes of the 
Safe Drinking Water Act, EPA expects that this review will take 9 
months and thus will not conclude until December 2021. The sole purpose 
of this action is to provide a short delay of the effective date of the 
LCRR so that EPA can request comment on a longer extension--until 
December 2021--of the LCRR effective date and corresponding compliance 
dates. The proposed longer extension, published elsewhere in this 
Federal Register, would allow EPA to complete its review of this 
important rule and consult with stakeholders who have raised 
significant concerns about the rule, including those who have been 
historically underserved by, or subject to, discrimination in Federal 
policies and programs prior to the rule going into effect. The longer 
extension will also avoid expenditures or other irreversible 
commitments that would be wasted if, at the end of EPA's review, it 
decides to propose revisions to the LCRR.
    Because of the short duration of this action, the procedural nature 
of this action, and the fact that the compliance dates for the LCRR are 
well in the future and this action provides a reprieve for immediate 
planning for compliance, this action should have minimal adverse impact 
on regulated entities or the public. No regulatory changes to the LCRR 
are made by this action. Rather, EPA is taking this action for the sole 
purpose of providing time for a public comment period which will allow 
all interested parties to provide input to the agency about whether to 
extend the LCRR effective date, and corresponding compliance dates, 
prior to that rule going into effect. To enable this comment process, 
this rule provides a

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short delay of the LCRR effective date, to June 17, 2021, and EPA is 
simultaneously publishing a proposed rule that, if finalized, would 
extend the effective date for an additional 6 months (see the 
``Proposed Rules'' section of this issue of the Federal Register).

II. 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.
    Stakeholders have a range of concerns about the LCRR. 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.
    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

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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 short delay in effective date accomplished by this rule will 
enable the Agency to separately take comment on the need for a further 
extension of the effective date and an extension of the compliance 
dates so that the Agency can conduct a thorough review of the rule and 
engage meaningfully with the public on this all-important public health 
regulation. In a separate notice of proposed rulemaking, published in 
the ``Proposed Rules'' section of this issue of the Federal Register, 
EPA is requesting public comment on the additional 6-month extension of 
the June 17, 2021, effective date of the LCRR to December 16, 2021, and 
a 9-month extension of the current compliance date of January 16, 2024, 
to September 16, 2024, respectively. EPA will engage with stakeholders 
during this 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.
    The LCRR's effective date (which is 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 generally 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 requirements in the rule. Without a 
delay in the effective date of the rule, regulated entities may feel it 
necessary to undertake activities and spend scarce resources on 
compliance obligations that could change at the end of EPA's review 
period.

III. Compliance With the Administrative Procedure Act

    Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 
553(b)(B), provides that, when an agency for good cause finds that 
notice and public procedure are impracticable, unnecessary, or contrary 
to the public interest, the agency may issue a rule without providing 
notice and an opportunity for public comment. As further explained 
below, EPA has determined that there is good cause to delay the 
effective date of the LCRR for 90 days without prior proposal and 
opportunity for comment because pre-promulgation public comment on this 
short notice is impracticable and contrary to the public interest. 
Namely, in this instance, where the LCRR will go into effect on March 
16, 2021, less than two months after the start of this new 
Administration, it is impracticable for EPA to provide notice and 
gather comment prior to the rule going into effect. For the reasons 
explained above and below, allowing the rule to go into effect without 
further public engagement will also be contrary to the public interest.
    Consistent with Executive Order 13990 and the January 20, 2021, 
White House memorandum, EPA has determined that the LCRR needs 
additional assessment of policy and legal issues, as well as 
stakeholder consultations on issues critical to the protection of 
public health. As discussed above, this rule is about the significant 
public health issues associated with lead in drinking water that is 
both nationally significant and has had a particular impact, in some 
instances overwhelming, on some American communities, particularly some 
minority and low income communities. As noted above, stakeholders that 
represent some of these communities have raised concerns that the LCRR, 
which is a revision of an existing lead drinking water rule, is not 
sufficient to provide needed protection from the dangers of lead in 
drinking water and that it may, in some respects, actually represent a 
retreat from protections provided by the existing rule. For example, in 
a March 4, 2021, letter, stakeholders raised concerns about key aspects 
of the rule, including whether to have a maximum contaminant level, 
whether the lead action level of 15 ppb is too high, the pace of lead 
service line replacements, and the flexibilities in the LCRR for small 
water systems, as well as whether the Agency complied with SDWA 
rulemaking requirements such as those governing risk assessment, 
management and communication and the opportunity for public hearing. 
Indeed, representatives of these stakeholders have asked EPA to suspend 
the rule for 6 months for these and other reasons. EPA has concluded, 
as a result, that it is critical to engage these stakeholders and other 
interested parties in reexamining the rule to ensure that it is 
maintaining and enhancing public protection from lead in drinking water 
for all Americans. EPA believes it is vital and in the public interest 
to engage this community in a review of this rule before it goes into 
effect.
    At the same time, EPA recognizes that water systems and States must 
expend funds and begin to make near term and significant programmatic 
and legal changes in order to be in compliance with the rule within the 
three year timeframe provided by the statute. These changes include 
assigning and training personnel, obtaining funds, developing lead 
service line inventories, preparing plans, adopting new rules and/or 
obtaining legislative authorization, and modifying data systems. If 
after the review of the rule, EPA concludes that significant portions 
of the rule should change, these activities, and the funds that support 
them will have been expended in ways that could be less protective of 
public health from the significant adverse effects from lead in 
drinking water than if these communities made expenditures after the 
Agency has determined what constitutes the best approach to addressing 
this problem under the SDWA. The Agency feels strongly that the 
diversion of funds from cash-strapped communities and public agencies 
in this manner should be avoided. As a result, it is also in the public 
interest to delay the effective date during the time that EPA is 
reviewing the rule so that critically limited public funds needed to 
address this public health crisis are not wasted on implementation 
activities that may not be warranted after reexamination of the rule. 
It is further in the public interest to briefly delay this rule in 
order to take comment from affected parties on whether a longer delay 
of the effective date and compliance date is necessary and appropriate.
    EPA has acted quickly during the transition to address concerns 
about this rule. Within a short period of time after the transition, 
the Agency determined that it was critically important to engage with 
the public and interested stakeholders through multiple

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avenues--including an opportunity for written public comments, meetings 
with stakeholders--prior to completing its review of the LCRR and 
allowing it to become effective. This document was expeditiously 
prepared by the Agency in order to be published within less than two 
months of the change in Administration.
    EPA is promulgating this delay to allow time for the public to 
comment on whether to further extend the effective date of the LCRR. 
That proposal is published elsewhere in this issue of the Federal 
Register. This opportunity for public input on whether to allow the 
rule to go into effect as it currently stands, would be foreclosed if 
EPA were to provide for pre-promulgation notice and comment. EPA has 
weighed carefully the fact that this objective is being achieved by 
deferring the effective date through use of the good cause exception 
under the APA. The Agency has concluded that the LCRR presents the 
exceptional case in which reliance on good cause to forgo pre-
promulgation notice and comment is appropriate due to the impacts of 
allowing the rule to go into effect without further public input and 
engagement. EPA finds that the totality of the circumstances here--the 
short duration of and important purpose served by the delay, the 
serious issues raised by the stakeholders and litigants which deserve 
careful evaluation by the Agency prior to the rule becoming effective, 
the concerns raised by stakeholders about potential harm from allowing 
the rule to go into effect, and that, at the same time as publishing 
this final rule, EPA is also publishing a proposed rule inviting public 
comment on whether the effective date should be delayed--provide good 
cause to forego notice and an opportunity for comment in these limited 
circumstances.
    Section 553(d)(3) of the APA provides that final rules shall not 
become effective until 30 days after publication in the Federal 
Register ``except . . . as otherwise provided by the agency for good 
cause.'' The purpose of this provision is to ``give affected parties a 
reasonable time to adjust their behavior before the final rule takes 
effect.'' Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630 
(D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 
1104 (8th Cir. 1977) (quoting legislative history). Thus, in 
determining whether good cause exists to waive the 30-day delay, an 
agency should ``balance the necessity for immediate implementation 
against principles of fundamental fairness which require that all 
affected persons be afforded a reasonable amount of time to prepare for 
the effective date of its ruling.'' Gavrilovic, 551 F.2d at 1105. EPA 
has determined that there is good cause for making this final rule 
effective immediately where, as explained above, the impact of this 
rule is to provide affected persons additional time before the LCCR 
goes into effect.

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)

    This action is not subject to the RFA. The RFA applies only to 
rules subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. 
This rule is not subject to notice and comment requirements because the 
Agency has invoked the APA ``good cause'' exemption under 5 U.S.C. 
553(b).

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538. The action imposes no enforceable duty on any 
State, local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will 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 action does not have tribal implications as specified in 
Executive Order 13175. This action is not subject to Executive Order 
13175 because it will 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 action is not subject to Executive Order 13045 because the 
delay of the effective date, by itself is not economically significant.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This 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 rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    This action is not subject to Executive Order 12898 (59 FR 7629, 
Feb. 16, 1994) because it does not establish an environmental health or 
safety standard. This action delays the effective date that, by itself, 
does not concern an environmental health risk or safety risk.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. The CRA allows the issuing agency to make a rule 
effective sooner than otherwise provided by the CRA if the agency makes 
a good cause finding that notice and comment rulemaking procedures are 
impracticable, unnecessary or contrary to the public interest (5 U.S.C. 
808(2)). EPA has made a good cause finding for this rule as discussed 
in the SUPPLEMENTARY INFORMATION section of this document, including 
the basis for that finding.

Jane Nishida,
Acting Administrator.
[FR Doc. 2021-05271 Filed 3-11-21; 8:45 am]
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