[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]


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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.

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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