[Federal Register Volume 63, Number 159 (Tuesday, August 18, 1998)]
[Proposed Rules]
[Pages 44214-44218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22196]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 141

[FRL-6146-7]
RIN-2040-AC27


Maximum Contaminant Level Goals and National Primary Drinking 
Water Regulations for Lead and Copper

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule with request for comments.

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SUMMARY: The Environmental Protection Agency (EPA) is soliciting public 
comment on an additional regulatory option the Agency is considering in 
conjunction with minor revisions to the National Primary Drinking Water 
Regulations for Lead and Copper. The option would modify the way in 
which compliance with optimal corrosion control requirements is 
determined for water systems subject to the rule's water quality 
parameter monitoring requirements and would give systems greater 
flexibility and remove disincentives for water systems to implement 
good process control procedures. The intended effect is to avoid 
putting systems that monitor water quality parameters more frequently 
than required under the lead and copper regulations at greater risk of 
non-compliance than those systems that only conduct the minimum 
required monitoring. This option would not increase, and may decrease, 
the burden associated with compliance with the lead and copper rule.

DATES: Written comments should be postmarked or delivered by hand by 
September 17, 1998.

ADDRESSES: Send written comments to the Lead and Copper Rule Comment 
Clerk, Water Docket (MC-4101), Environmental Protection Agency, 401 M 
Street, SW, Washington, DC 20460. Please submit an original and three 
copies of your comments and enclosures (including references). If you 
wish to hand-deliver your comments, please call the Docket at (202) 
260-3027 between 9 a.m. and 4 p.m., Monday through Friday, excluding 
Federal holidays, to obtain directions to Room EB57. Please see 
Supplementary Information under the heading ``Additional Information 
for Commenters'' for detailed filing instructions, including electronic 
submissions.
    The record for this rulemaking has been established under docket 
name National Primary Drinking Water Regulations for Lead and Copper. 
The record includes supporting documentation as well as printed, paper 
versions of electronic comments. The record is available for inspection 
from 9 a.m. to 4 p.m., Monday through Friday, excluding legal holidays 
at the Water Docket, Room EB57, 401 M Street, SW, Washington, DC 20460. 
For access to the Docket materials, please call (202) 260-3027 to 
schedule an appointment.

FOR FURTHER INFORMATION CONTACT: The Safe Drinking Water Hotline, toll 
free 1-800-426-4791. The Safe Drinking Water Hotline is open Monday 
through Friday, excluding Federal holidays, from 9:00 a.m. to 5:30 p.m. 
Eastern Time. For technical inquiries, contact Judy Lebowich, Standards 
and Risk Management Division, Office of Ground Water and Drinking 
Water, EPA (MC-4607), 401 M Street SW, Washington, DC 20460; telephone 
(202) 260-7595.

SUPPLEMENTARY INFORMATION:

Regulated Entities

    Entities potentially regulated by this regulatory option include 
all community water systems (CWSs) and

[[Page 44215]]

non-transient non-community water systems (NTNCWSs) that serve more 
than 50,000 people and those CWSs and NTNCWSs serving 50,000 or fewer 
people that exceed, or expect to exceed, the lead or copper action 
level after the installation of corrosion control treatment. Regulated 
categories and entities include:

------------------------------------------------------------------------
           Category                  Examples of regulated entities     
------------------------------------------------------------------------
Industry.....................  Privately-owned CWSs and NTNCWSs serving 
                                > 50,000 people or likely to exceed an  
                                action level after the installation of  
                                corrosion control treatment.            
State, Tribal, and Local       Publicly-owned CWSs and NTNCWSs serving >
 Governments.                   50,000 people or likely to exceed an    
                                action level after the installation of  
                                corrosion control treatment.            
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by the 
possible changes to the Lead and Copper Rule discussed in this 
document. If EPA decides to promulgate the regulatory option discussed 
in this document, the Agency plans to incorporate this modification in 
the Lead and Copper Minor Revisions Rule that the Agency plans to 
promulgate in the near future. Readers should note that all CWSs and 
NTNCWSs may be affected by the Lead and Copper Minor Revisions Rule. 
Other types of entities not listed in the table could also be 
regulated. To determine whether your facility is regulated by the Lead 
and Copper Minor Revisions Rule, you should carefully examine the 
applicability criteria in Secs. 141.3 and 141.80(a) of title 40 of the 
Code of Federal Regulations. If you have questions regarding the 
applicability of the Lead and Copper Minor Revisions Rule to a 
particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.

Additional Information for Commenters

    To ensure that EPA can read, understand and therefore properly 
respond to your comments, the Agency requests that commenters follow 
the following format: type or print comments in ink, and cite, where 
possible, the paragraph(s) in this document to which each comment 
refers. Please use a separate paragraph for each issue discussed and 
limit your comments to the issues addressed in today's document. 
Comments on issues other than those discussed in today's document will 
not be considered.
    If you want EPA to acknowledge receipt of your comments, enclose a 
self-addressed, stamped envelope. No facsimiles (faxes) will be 
accepted. Comments also may be submitted electronically to ow-
[email protected]. Electronic comments must be submitted as a 
WordPerfect 5.1, WordPerfect 6.1, or ASCII file avoiding the use of 
special characters and forms of encryption and must be transmitted by 
midnight September 17, 1998. Electronic comments must be identified by 
the docket name, number, or title of the Federal Register. Comments and 
data also will be accepted on disks in WordPerfect 5.1, WordPerfect 
6.1, or ASCII file format. Electronic comments on this notice may be 
filed online at many Federal Depository Libraries.

Discussion of Regulatory Option

    On June 7, 1991, the Environmental Protection Agency (EPA) 
promulgated National Primary Drinking Water Regulations (NPDWRs) for 
Lead and Copper (56 FR 26460, June 7, 1991). The Lead and Copper Rule 
(LCR) requires water systems to optimize corrosion control in order to 
minimize lead and copper levels at consumers' taps and requires States 
to designate water quality parameter (WQP) values representing optimal 
corrosion control (OWQPs) for certain systems after the installation of 
corrosion control treatment. OWQPs must be designated for pH at all 
sampling locations. The State also must designate OWQPs for other water 
quality parameters including alkalinity, orthophosphate, silica, and 
calcium, depending on the sampling location and the corrosion control 
treatment.
    Once the State has designated OWQPs, those systems subject to 
routine water quality parameter monitoring requirements demonstrate 
that they are properly operating and maintaining optimal corrosion 
control treatment (OCCT) by measuring water quality parameters biweekly 
(i.e., every two weeks) at entry points and periodically at taps 
throughout the distribution system. If a system conducts more than the 
minimally required sampling, all results must be used in determining 
compliance, with the exception that States have discretion to delete 
results of obvious sampling errors from the compliance determination 
calculations.
    Presently, a system incurs a violation if the WQP value of any 
sample is below the minimum value or outside the range designated by 
the State. The system may take a confirmation sample for any WQP value 
no later than 3 days after the initial sample, which is averaged with 
the original sample to determine compliance.
    Some States have questioned the technical merit of using averaging 
for determining compliance. The following example illustrates the 
problem. A system with an original value for pH of 7.2 (outside the 
designated range of 7.4-7.6) and a confirmation value of 7.8 would be 
in compliance while a system with an original value of 7.3 and a 
confirmation value of 7.4 would incur a violation. One of the most 
important factors in maintaining OCCT is to maintain a stable pH. 
Systems which do not maintain a stable pH are probably not maintaining 
optimal corrosion control and are the most likely to have elevated lead 
and/or copper levels. However, under the current compliance scheme, 
those systems, even though they may not be maintaining optimal 
corrosion control, are still deemed in compliance.
    Issues have also been raised by some States and water systems 
regarding how to determine compliance for systems that monitor OWQPs 
more frequently than biweekly. Systems monitoring for OWQPs on a more 
frequent basis than biweekly have a greater chance of incurring a 
violation, since all measurements must be used in compliance 
determinations. The LCR as written may be viewed as providing a 
disincentive for systems to conduct more frequent OWQP monitoring than 
the minimum required. For example, a system monitoring for pH every 4 
hours would need to include all measurements in compliance 
determinations, which substantially increases the likelihood of 
incurring a violation compared to a system conducting biweekly 
monitoring. The next (confirmation) sample following an excursion would 
be only 4 hours away, leaving little time to adjust treatment.
    EPA acknowledges that averaging the original and confirmation 
samples may inadvertently reward systems that do not properly maintain 
optimal corrosion control. EPA also acknowledges the merits of 
conducting more frequent WQP monitoring, and does not intend to 
penalize systems which perform such monitoring. To address these 
problems,

[[Page 44216]]

in April 1998, EPA requested comment on a regulatory option that would 
replace the confirmation sample approach with one that would allow 
compliance to be determined on the basis of a repeat sample that could 
be taken within three days of the original sample when the original 
sample is below the minimum value or outside the range designated by 
the State (63 FR 20038, April 22, 1998). Many commenters noted that, 
while the repeat sample approach represents an improvement over the 
current approach, it does not address the issue of systems that monitor 
WQPs several times a day.
    After reviewing the comments received, EPA is considering further 
refinements to the method for determining compliance with OWQP 
requirements. Under this newest alternative, OWQP compliance would be 
determined quarterly for each WQP and sampling location. For each WQP 
measured more frequently than once per day at a sampling location, that 
sampling location would be in compliance for a calendar quarter as long 
as the results of at least 95% of the samples taken within that quarter 
were above the minimum value or within the range designated by the 
State. For each WQP measured once per day or less frequently at the 
sampling location, a repeat sample approach similar to the one 
described in the April 22, 1998, document would be used to determine 
compliance. A water system would incur a WQP treatment technique 
violation for any quarter in which non-compliance occurs for any WQP at 
any sampling location at which WQP measurements are collected during 
the quarter.
    The following is an example of how this option would work at a 
water system required to monitor for more than one WQP and where the 
frequency of sampling depends on the parameter and sampling location. 
Assume the State has designated OWQPs for pH and orthophosphate and 
that the system monitors pH continuously at each of two entry points 
and takes grab samples biweekly for pH at 10 distribution system taps 
and for orthophosphate at every entry point and distribution system 
tap. During a quarter, two percent of the pH results at one entry point 
and four percent of the results at the other entry point were outside 
the State-designated range. Neither entry point had a pH excursion that 
lasted more than 72 hours. The system collected samples from five 
distribution system taps. The original pH results from two of the tap 
samples were outside the range; a repeat sample for pH was taken at 
both of these taps 48 hours later and the results were within the 
range. The system was therefore in compliance during the quarter.
    The system would be out of compliance, however, under any one of 
the following scenarios.
     The results of the pH monitoring at one of the entry 
points were outside the range 5.1% of the time.
     The results of the pH monitoring at one of the entry 
points were outside the range for 76 consecutive hours.
     The result of one biweekly distribution system tap pH 
sample was outside the range and the result of a repeat pH sample 
collected at the same tap 72 hours later also was outside the range.
     The result of one biweekly orthophosphate sample was 
outside the range and no repeat orthophosphate sample was collected.
     The result of one biweekly orthophosphate sample was 
outside the range and the result of a repeat orthophosphate sample 
taken at the same location 72 hours later also was outside the range.
    Water systems are required to measure WQPs at entry points at least 
biweekly. The Agency believes that incurring a violation every two 
weeks due to relatively minor excursions, as could happen with the 
current requirements, would result in triggering the public 
notification (PN) requirements of Sec. 141.32, even when the excursion 
is not necessarily indicative of a public health concern. Moreover, 
triggering PN on such a frequent basis that PN could cause the 
information to lose its effectiveness while imposing significant burden 
on the water utility and not truly distinguishing excursions of public 
health concern from those that are not. The Agency believes that a more 
appropriate frequency of PN for a OWQP treatment technique violation is 
approximately once every three months, for as long as the non-
compliance exists. EPA also does not believe that there should be a 
significant difference, from a consumer perspective, whether OWQP non-
compliance occurs at an entry point, in the distribution system, or 
both. For this reason, the Agency thinks it appropriate that compliance 
with OWQPs be determined quarterly. While entry point samples are 
collected each quarter, there may be some quarters each year in which 
no distribution system tap samples are required to be collected. For 
the purposes of determining the minimum number of tap water WQP samples 
taken in an interval of time, the Agency plans to retain the monitoring 
periods currently specified in Sec. 141.87(c)-(e), i.e.,  every six-
months, annually, or every 3 years.
    The Agency selected the 95th percentile based on considerations of 
the total amount of time a system might have excursions at one location 
during a quarter. By setting compliance at the 95th percentile, a water 
system can have excursions at a single entry point no more than 
approximately four and one-half days in a single quarter. Since no one 
excursion can persist for more than 72 hours (approximately 3 days) 
without becoming a violation, EPA believes that a system measuring WQPs 
several times a day at each entry point and meeting the compliance 
criteria described above is maintaining optimal corrosion control at 
least as effectively as a water system monitoring less frequently and 
determining compliance based on individual biweekly grab samples.
    The Agency does not believe that a water system normally measuring 
a WQP at individual sampling locations once a day or less frequently 
can have any excursions and still be in compliance at least 95% of the 
time unless the system ``pads'' the sample results with additional 
samples collected during the quarter merely for the sake of having 
enough within range. For this reason, the Agency believes it is more 
appropriate for compliance to be determined using the repeat-sample 
approach when sampling occurs once a day or less often.
    In some instances, a system should realize it is out of compliance 
before the end of a calendar quarter. This could occur, for example, if 
a distribution system tap water sampling location is out of compliance. 
In such cases, the system is required by Sec. 141.31(b) to report the 
non-compliance to the State within 48 hours and to initiate PN in 
accordance with the schedule specified in Sec. 141.32 for a treatment 
type violation.
    Since Sec. 141.86(d) and Sec. 141.87(e) require systems on reduced 
monitoring, and subject to the WQP monitoring requirements after State 
designation of OWQPs, to maintain compliance with Sec. 141.82(g) to 
retain eligibility for reduced monitoring, any system on reduced 
monitoring that incurs an OWQP violation must resume standard 
monitoring until such time as it is again eligible for reduced 
monitoring. The resumption of standard monitoring should occur as soon 
as practicable, but no later than the start of the calendar quarter 
following the one in which the OWQP violation occurs.
    EPA is considering the following changes to Sec. 141.82(g) and 
Sec. 141.87(d) as a part of this revision. Section 141.82(g) currently 
reads:


[[Page 44217]]


    Continued operation and monitoring. All systems shall maintain 
water quality parameter values at or above minimum values or within 
ranges designated by the State under paragraph (f) of this section 
in each sample collected under Sec. 141.87(d). If the water quality 
parameter value of any sample is below the minimum value or outside 
the range designated by the State, then the system is out of 
compliance with this paragraph. As specified in Sec. 141.87(d), the 
system may take a confirmation sample for any water quality 
parameter value no later than 3 days after the first sample. If a 
confirmation sample is taken, the result must be averaged with the 
first sampling result and the average must be used for any 
compliance determinations under this paragraph. States have 
discretion to delete results of obvious sampling errors from this 
calculation.

    Under the revision EPA is considering, the language of 
Sec. 141.82(g) would be revised to read:

    Continued operation and monitoring. All systems shall maintain 
water quality parameter values at or above minimum values or within 
ranges designated by the State under paragraph (f) of this section 
in each sample collected under Sec. 141.87(d)-(f). A water system is 
out of compliance with the requirements of this paragraph during any 
calendar quarter in which at least one entry point or distribution 
system tap sampling location from which water quality parameter 
samples are collected during the quarter does not meet the 
compliance requirements of this paragraph for any water quality 
parameter. States have the discretion to delete obvious sampling 
errors from the compliance determination. Compliance for each water 
quality parameter at each sampling location is determined as 
follows.
    (1) Where measurements for a water quality parameter are taken 
more frequently than once per day at the sampling location, the 
sampling location is in compliance for that water quality parameter 
if excursions occur in no more than five percent of the samples 
taken during the quarter and no single excursion lasts more than 72 
hours.
    (2) Where measurements for a water quality parameter are taken 
once per day or less often at the sampling location, the sampling 
location is in compliance if either:
    (i) No excursions occur; or
    (ii) A repeat sample collected for the same water quality 
parameter at the same location within 72 hours of the excursion is 
not an excursion. If more than one repeat sample for that water 
quality parameter is collected at that sampling location within the 
72-hour period, the compliance will be based on the results of the 
last sample taken during that period.

    Section Sec. 141.87(d) currently reads:

    Monitoring after State specifies water quality parameter values 
for optimal corrosion control. After the State specifies the values 
for applicable water quality control parameters reflecting optimal 
corrosion control treatment under Sec. 141.82(f), all large systems 
shall measure the applicable water quality parameters in accordance 
with paragraph (c) of this section during each monitoring period 
specified in Sec. 141.86(d)(3). Any small or medium-size system 
shall conduct such monitoring during each monitoring period 
specified in Sec. 141.86(d)(3) in which the system exceeds the lead 
or copper action level. The system may take a confirmation sample 
for any water quality parameter no later than 3 days after the first 
sample. If a confirmation sample is taken, the result must be 
averaged with the first sampling result and the average must be used 
for any compliance determinations under Sec. 141.82(g). States have 
discretion to delete results of obvious sampling errors from this 
calculation.

    It would be revised to read:

    Monitoring after State specifies water quality parameter values 
for optimal corrosion control. After the State specifies the values 
for applicable water quality control parameters reflecting optimal 
corrosion control treatment under Sec. 141.82(f), all large systems 
shall measure the applicable water quality parameters in accordance 
with paragraph (c) of this section during each monitoring period 
specified in Sec. 141.86(d)(3). Any small or medium-size system 
shall conduct such monitoring during each monitoring period 
specified in Sec. 141.86(d)(3) in which the system exceeds the lead 
or copper action level. At sampling locations where sampling for a 
water quality parameter occurs once per day or less often, the 
system may take a repeat sample for that water quality parameter at 
the same location within 72 hours of the first sample for any water 
quality parameter value that is below the minimum value or outside 
the range designated by the State under Sec. 141.82(f). If more than 
one repeat sample for that water quality parameter is taken at the 
same location within that 72-hour period, the last sample taken for 
that water quality parameter at the location within the period shall 
be used for compliance determinations under Sec. 141.82(g). If the 
system takes repeat sample(s), the schedule for the next routine 
sample shall be based on the date of the original sample. As 
specified in Sec. 141.82(g), compliance with the requirements of 
Sec. 141.82(g) shall be determined quarterly for each water quality 
parameter and sampling location based on all the water quality 
parameter measurements taken for the water quality parameter at the 
sampling location during the quarter. States have the discretion to 
delete results of obvious sampling errors from any compliance 
determination calculations under Sec. 141.82(g).

    As a part of this new option, EPA also would modify the language of 
Sec. 141.87(c)(2) to clarify how the results of any continuous 
monitoring should be factored into the compliance determinations. 
Section 141.87(c)(2) currently reads: ``[Systems required to monitor 
for water quality parameters after the State designates OWQPs shall 
measure the WQPs at] each entry point to the distribution system, one 
sample every two weeks (bi-weekly) for: * * *.'' The Agency is 
considering the following rewording. ``At each entry point to the 
distribution system, systems [required to monitor for water quality 
parameters after the States designates OWQPs] shall collect at least 
one sample every two weeks (bi-weekly). Where continuous monitoring for 
a water quality parameter occurs at an entry point, the system shall 
record the results no less frequently than once every four hours and 
use those recorded results for determining compliance under 
Sec. 141.82(g). Entry point sampling shall occur for: * * *.''
    The Agency believes that recording the results every four hours is 
an appropriate interval where continuous monitoring is occurring 
because it provides relatively frequent readings and is consistent with 
the recording requirements of other drinking water regulations that 
include continuous monitoring.
    Finally, as a part of this option, EPA would make corresponding 
changes to the reporting requirements at Sec. 141.90(a)(1) to clarify 
that systems must report to the State on a quarterly basis all water 
quality parameter results collected pursuant to Sec. 141.87(d)-(f) 
during the quarter, unless a more frequent reporting schedule is 
specified by the State. The introductory text of Sec. 141.90(a)(1) 
currently reads:

    A water system shall report the information specified below for 
all tap water samples within the first 10 days following the end of 
each applicable monitoring period specified in Sec. 141.86 and 
Sec. 141.87 and Sec. 141.88 (i.e., every six-months, annually, or 
every 3 years).

    To reflect the revised approach for determining OWQP compliance, 
EPA is considering revising the paragraph to read:

    Except as provided in paragraph (a)(1)(viii) of this section, a 
water system shall report the information specified below for all 
tap water and entry point samples within the first 10 days following 
the end of each applicable monitoring period specified in 
Sec. 141.86 and Sec. 141.87 and Sec. 141.88 (i.e., quarterly, every 
six-months, annually, or every 3 years).

    EPA also would add a paragraph (viii) to Sec. 141.90(a)(1) that 
would read: ``States have the discretion to require the reporting of 
the results of all tap water and entry point water quality parameter 
monitoring collected under Sec. 141.87(c)-(e) more frequently than 
quarterly.''
    EPA believes there will be little or no change in burden as a 
result of this alternative. Monitoring burden is not affected since 
there is no change in the number of WQP samples that a water system is 
required to collect to remain in compliance with the LCR. Section 
141.87(f) already requires that the

[[Page 44218]]

results of any WQP sampling conducted in addition to the minimum 
requirements of the LCR be considered as a part of any compliance 
determination under Sec. 141.82(g); therefore, no additional burden is 
assumed in conjunction with recording the results of continuous 
monitoring every four hours since it is reasonable to conclude that 
systems doing continuous monitoring already are recording these results 
at these intervals in compliance with other drinking water regulations. 
If anything, this alternative may result in a slight burden decrease 
for those systems that would be triggered into PN more frequently than 
once per quarter under the current requirements.
    EPA solicits public comment on this new approach, including such 
issues as:
     Does it make sense for systems that sample more frequently 
than once per day to use a percentile-based approach for determining 
compliance with OWQPs;
     Is the 95th percentile the appropriate percentile and, if 
not, what percentile should be used and why;
     Is it appropriate to use different compliance-
determination approaches depending on the frequency of monitoring;
     Would it be more appropriate to use the percentile-based 
approach where a water quality parameter is measured daily at a 
sampling location and, if so, why;
     Should some other approaches be allowed for determining 
compliance and, if so, what and how should the approach be structured 
and when should it be used;
     Is it appropriate to require systems conducting continuous 
monitoring to record the results every 4 hours and, if not, what is the 
appropriate frequency and why; and
     Is it clear from the existing rule language of 
Sec. 141.86(d)(4) and Sec. 141.87(e) that a system loses its 
eligibility for reduced monitoring if it is out of compliance with 
Sec. 141.82(g) but not if it incurs an excursion that does not result 
in a violation.
    After considering the public comments on today's Notice, EPA may 
change various components of this new compliance scenario in the final 
rule if the Agency believes such changes are warranted.

List of Subjects in 40 CFR Part 141

    Environmental protection, Chemicals, Indians-lands 
Intergovernmental relations, Reporting and recordkeeping requirements, 
Water supply.

    Dated: August 10, 1998.
J. Charles Fox,
Acting Assistant Administrator, Office of Water.
[FR Doc. 98-22196 Filed 8-17-98; 8:45 am]
BILLING CODE 6560-50-P