[Federal Register Volume 84, Number 245 (Friday, December 20, 2019)]
[Notices]
[Pages 70184-70186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27487]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-R08-OW-2019-0404; FRL-10003-46-Region 8]


Approval of Variance Decision Pursuant to the Safe Drinking Water 
Act; Alternative Treatment Technique for National Primary Drinking 
Water Lead and Copper Regulations for Denver Water

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice and opportunity for public comment.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
variance under the Safe Drinking Water Act (SDWA) for Denver Water. 
This variance will allow Denver Water to implement a Lead Reduction 
Program Plan (LRPP) as an alternative to using orthophosphate as a 
corrosion control treatment to reduce lead concentrations in drinking 
water. Denver Water's LRPP is expected to be as protective in lowering 
lead levels as the requirements under the Lead and Copper Rule (LCR). 
This variance is effective for an initial period of three years and may 
be extended if Denver Water demonstrates the effectiveness of this 
alternative approach. Concurrent with this action, the EPA is asking 
for comments on the potential criteria for how the Agency will 
determine whether to extend this variance for up to an additional 
twelve years. The EPA is accepting public comments on these criteria 
and on the EPA's interpretation of the statutory standard for future 
variance requests, as described under SUPPLEMENTARY INFORMATION.

DATES: All public comments on the criteria must be received on or 
before January 21, 2020.

ADDRESSES: All comments can be submitted directly through docket number 
EPA-R08-OW-2019-0404 available at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: The variance documents are available 
through docket number EPA-R08-OW-2019-0404 available at 
www.regulations.gov. Questions can be directed to Natalie Cannon, 
Drinking Water B Section, EPA Region 8, 1595 Wynkoop Street, Denver, CO 
80202-1129, phone 303-312-6625.

SUPPLEMENTARY INFORMATION: The Lead and Copper Rule (LCR) required that 
all large public water systems (PWSs) complete corrosion control 
treatment steps and install optimal corrosion control treatment for 
lead and copper by January 1, 1997, complete follow up

[[Page 70185]]

sampling, and operate in compliance with optimal water quality 
parameters (OWQPs) specified by the applicable regulatory authority by 
July 1, 1998. Denver Water conducted a corrosion control treatment 
study in the mid-1990's. Based on that study, CDPHE designated pH and 
alkalinity treatment as optimal corrosion control treatment for Denver 
Water and set a minimum pH of 7.5 and alkalinity of 15 mg/L, 
respectively, as OWQPs on October 18, 1995. Denver Water installed pH 
and alkalinity adjustment treatment prior to January 1, 1997. Denver 
Water has consistently monitored, met these OWQPs and has not had any 
excursions or violations related to OWQPs.
    In 2012, Denver Water exceeded the lead action level of 15 [mu]g/L, 
but Denver Water was not required to conduct any lead service line 
replacements under the LCR because Denver Water does not own any lead 
service lines. CDPHE, however, required Denver Water to conduct a new 
corrosion control treatment study, which was completed in September 
2017. On March 20, 2018, CDPHE modified its designation of the optimal 
corrosion control treatment (OCCT) for Denver Water, requiring Denver 
Water to install and operate orthophosphate as OCCT by March 20, 2020.
    Section 1415(a)(3) of the SDWA and 40 CFR 142.46 authorize the 
Administrator to grant a variance from a treatment technique ``upon a 
showing by any person that an alternative treatment technique not 
included in such requirement is at least as efficient in lowering the 
level of the contaminant with respect to which such requirement was 
prescribed. A variance under this paragraph shall be conditioned on the 
use of the alternative treatment technique which is the basis for the 
variance.''
    On September 6, 2019, Denver Water requested a variance under 
Section 1415(a)(3) of the SDWA from the optimal corrosion control 
treatment requirements of the LCR. In its request, Denver Water 
proposed that instead of following the requirement to install the 
State's designation of orthophosphate as optimal corrosion control 
treatment as required by 40 CFR 141.82(e), it would implement its LRPP. 
The LRPP includes a suite of actions that will work together to reduce 
lead in Denver's drinking water including: (1) Developing a LSL 
inventory to identify and track lead service line replacements (LSLRs); 
(2) initiating a lead removal filter program for homes with LSLs and 
certain homes with copper pipe with lead solder; (3) conducting an 
accelerated LSLR program to replace all LSLs in 15 years; (4) operating 
increased pH/alkalinity adjustment as corrosion control treatment for 
all customers; and (5) implementing a communications, outreach, and 
education plan. Denver Water provided an analysis demonstrating that 
the LRPP is expected to provide public health protection and at least 
equivalent lead reductions as compared to compliance with the LCR 
provisions regarding corrosion control.
    Under the LRPP, Denver Water will conduct full LSLRs of privately-
owned LSLs at an accelerated rate compared to current conditions. 
Denver Water estimates it has approximately 64,000 LSLs. Under the 
LRPP, Denver Water commits to taking proactive steps to replace all 
LSLs in 15 years. Because some homes with LSLs will have to wait 
multiple years for their LSL to be replaced, Denver Water will also 
initiate a program that will provide a filter and replacement 
cartridges to every household with a LSL and select households with 
copper pipe with lead solder. In conjunction with these efforts, Denver 
Water will operate increased pH/alkalinity adjustment as corrosion 
control treatment to reduce lead corrosion from all sources. Denver 
Water will also conduct a full investigation of its LSL inventory and 
publish a map showing the locations of all LSLs. Finally, Denver Water 
will conduct extensive outreach to educate customers about the health 
risks of lead and ways that they can reduce their exposure to lead in 
drinking water.
    Denver Water provided an analysis demonstrating that these steps 
are expected to provide at least equivalent lead reductions as 
orthophosphate treatment and will therefore be protective of public 
health. The EPA finds that Denver Water has made a showing that its 
alternative treatment technique appears to meet the requirements of 
SDWA Section 1415(a)(3). In the variance order, the EPA explains how it 
evaluated and compared the LRRP to the requirement to install the 
State's designation of optimal corrosion control treatment as defined 
in 40 CFR 141.2 in concluding that LRRP is ``at least as efficient'' in 
lowering the levels of lead in tap water as orthophosphate.
    The EPA is therefore approving Denver Water's request for a SDWA 
Section 1415(a)(3) variance for an initial period of three years to 
enable Denver Water to further support its demonstration with 
additional data and for the EPA to verify the effectiveness of the 
LRPP. This variance is supported by the State of Colorado and will 
enable the State to modify its determination of optimal corrosion 
control treatment to incorporate the terms and conditions of this 
variance.
    In evaluating the variance request, the EPA also considered other 
factors beyond the statutory standard of ``as efficient.'' Denver 
Water's 90th percentile lead levels have consistently been below the 
lead action level since 1997 (except in 2012). Denver Water has the 
technical, managerial, and financial capacity to implement the lead 
reduction program both for Denver water consumers and for the 
consecutive systems they serve. Importantly for long-term public health 
protection, Denver Water has committed to and has the capacity to fully 
replace all lead service lines in 15 years. The EPA also recognizes 
that Denver Water wants to more fully engage in a holistic water 
management strategy based on concerns about the potential impacts from 
increased levels of phosphate in wastewater discharges to the South 
Platte River. This river is dominated by the effluent of a waste water 
treatment plant so there are limited options to effectively control 
nutrient levels.
    In the terms and conditions that make up the variance order, the 
EPA includes criteria for how the Agency will assess the effectiveness 
of Denver Water's program during the first three years and determine 
whether to extend this variance for an additional twelve years, which 
would provide the time necessary for Denver Water to complete its lead 
service line replacements. These criteria are intended to confirm the 
alternative treatment technique can be effectively implemented and 
results in ``at least as efficient'' lead reductions, as compared to 
installation of orthophosphate.
    The EPA is accepting public comments on these criteria. The EPA is 
also requesting comment on how the Agency should evaluate whether any 
future treatment technique variance requests are at least as efficient 
as the treatment technique requirements of the LCR. The EPA is not 
taking comment on the EPA's approval of Denver Water's variance, which 
is effective per the variance order, given the EPA's analysis of Denver 
Water's variance application and the previous public participation 
opportunities that informed the application.
    Specific questions the EPA is seeking comments on include:

    (1) Do the criteria in the variance order capture the data and 
factors the EPA should examine during the initial three-year 
approval period? Are there other criteria or information relevant to 
the meaning of ``at least as efficient'' that the EPA should 
consider when deciding whether to extend Denver Water's SDWA 
variance?

[[Page 70186]]

    (2) Should the EPA consider going through a notice and comment 
process for the extension?
    (3) How should the EPA evaluate any future treatment technique 
variance requests to the LCR? Specifically, because the term is not 
currently defined in statute or regulation, how should the EPA 
interpret ``at least as efficient'' to satisfy the statutory 
requirements for a variance to be granted under the SDWA Section 
1415(a)(3)? Beyond the criteria the EPA has evaluated in issuing the 
variance order, are there other criteria relevant to the meaning of 
``at least as efficient'' that the EPA should consider for future 
requests? How should the Agency evaluate the combined overall 
efficiency of a proposed alternative treatment technique, including 
whether or how to:
    a. Prepare an LSL inventory to identify and track LSLRs;
    b. distribute filters certified for lead removal to homes at 
risk of elevated lead levels;
    c. accelerate LSLRs;
    d. achieve near optimal corrosion control treatment; and
    e. conduct outreach and education with consumers?
    (4) The EPA also requests comment on other actions that water 
systems could take to ensure equally efficient reductions in 
drinking water lead exposure.

    The variance order and its terms and conditions are available 
online as part of docket number EPA-R08-OW-2019-0404 at 
www.regulations.gov.
    After consideration of public comments received, the EPA may modify 
the terms and conditions of the variance order to change the criteria 
by which the EPA will assess the effectiveness of Denver Water's 
alternative program in order to determine whether the variance should 
be extended.

    Dated: December 16, 2019.
Gregory Sopkin,
Regional Administrator, Region 8.
[FR Doc. 2019-27487 Filed 12-19-19; 8:45 am]
 BILLING CODE 6560-50-P