
Public Comment and Response Document for the Final Lead and Copper Rule Revisions; Delay of Effective and Compliance Dates


Table of Contents

Introduction and Overview	2
Background	2
Document Organization	2
1 Comments Generally in Favor of the Extensions of the Effective and Compliance Dates	3
1.1 Summary of Comments	3
1.2 Agency Response	3
2 Comments that Did Not Explicitly Support the Extensions of the Effective and Compliance Dates	4
2.1 Summary of Comments	4
2.2 Agency Response	6
3 Comments on Regulatory Components of LCRR	7
3.1 Summary of Comments	7
3.2 Agency Response	8
4 References	8


Introduction and Overview
Background
Consistent with President Biden's "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") and the White House memorandum, "Regulatory Freeze Pending Review" (86 FR 7424, January 28, 2021), EPA decided to review the LCRR, which was published in the Federal Register on January 15, 2021. EPA published a final rule on March 12, 2021 [86 FR 14003], which provided for a short delay of the LCRR's effective date to June 17, 2021, to allow the agency to seek comment on the proposal to extend the effective date further to December 16, 2021, allowing the agency adequate time to conduct a thorough review of the complex set of LCRR requirements to assess whether the regulatory changes are inconsistent with, or presents obstacles to, the policy set forth in Section 1 of the Executive Order 13990, and to 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 into effect. In the proposal, EPA also sought comment on an extension of the compliance dates by nine months from January 16, 2024, to Sept. 16, 2024 (86 FR 14063; March 12, 2021). 
In the proposed rule notice EPA solicited public comment on whether to extend the effective and compliance dates to engage with stakeholders during a review period to evaluate the rule and determine whether to initiate a process to revise components of the rule.  EPA also sought 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." (86 FR 14065). Following publication of the proposed Lead and Copper Rule Revisions; Delay of Effective and Compliance Dates, EPA accepted public comments for 30 days. EPA received fifty-three comments from individuals and organizations representing a wide range of stakeholders, including public water systems, states, other organizations, and private citizens. Each unique comment was read and considered in determining whether to extend the effective and compliance dates for the LCRR. A record of the comments received on the proposal, as well as EPA's responses to these comments are provided in this document. Copies of unique individual comments are also available as part of the public record and can be accessed through EPA's docket (EPA-HQ-OW-2017-0300 at www.regulations.gov). In addition, the materials referenced by EPA in this document are also available in the docket.
Document Organization
The remainder of this document is organized by general topic categories. Section 1, summarizes comments in favor of the extensions of the effective and compliance dates and provides EPA responses. Section 2, covers those comments that did not explicitly support the extensions of the effective and compliance dates and agency responses. Section 3, discusses comments received on regulatory components of Lead and Copper Rule Revisions and how EPA will utilize this information. Section 4 provides references.
1 Comments Generally in Favor of the Extensions of the Effective and Compliance Dates
1.1 Summary of Comments
The majority of commenters expressed support for the delay of the effective and compliance dates of the LCRR. These commenters, representing states, water systems, environmental and public health organizations, provided a number of reasons for their support as well as suggestions for how EPA should utilize the additional time. Commenters indicated that the delay would allow time for the agency to conduct a more thorough and complete review, collect and analyze new data, engage with stakeholders, and hold public meetings to solicit further comment on the LCRR as it relates to state and local implementation of drinking water standards, public health protections, lead in school drinking water issues, and specifically to listen to people who are living in communities disproportionately affected by exposure to lead and underserved communities suffering from lead-contaminated drinking water about their recommendations for the rule. Several commenters urged EPA to suspend the March 16, 2021 effective date of the LCRR to review the rule and initiate a new rulemaking to address issues with the rule published in the Federal Register on January 15, 2021. Commenters also expressed support for the 9-month compliance date extension from the current compliance date of January 16, 2024. Commenters stated that if the rule's effective date were delayed from March 16, 2021, to December 16, 2021, the compliance date should be delayed the same amount of time, ensuring that utilities do not lose any of the time they had been expecting to have available, to implement the rule once there is regulatory certainty. Additional commenters indicated that the extension of the compliance date would allow resource-constrained systems and communities needed time to implement the regulatory requirements of the LCRR in general, and more specifically, the lead service line (LSL) inventory and school and child care facility monitoring requirements. Two commenters indicated that the compliance date should be delayed as long as possible.
EPA received a small number of comment letters that, in general, supported a delay in the effective date and compliance dates, but did not want the agency to delay the implementation of some of the regulatory requirements they felt would increase public health protection. These commenters indicated that the following improvements could be implemented during EPA's reconsideration of the other aspects of the LCRR: the LSL inventory requirements, improved corrosion control treatment requirements, and strengthened monitoring provisions, including provisions that would prevent sampling that is likely to underestimate the actual lead levels in drinking water. Other commenters indicated that any delay to the LCRR effective date and compliance date must apply to the entire LCRR given the interrelated nature of the different aspects of the rule. According to these commenters, having the compliance date extension apply to the LCRR in its entirety will simplify communication, reduce complexity and confusion, improve compliance by the regulated community, and provide additional time to obtain the data management tools and resources required to implement the rule.
1.2 Agency Response
See EPA's response in Section III, of the Federal Register notice for the National Primary Drinking Water Regulations: Lead and Copper Rule Revisions; Delay of Effective and Compliance Dates final rule.
2 Comments that Did Not Explicitly Support the Extensions of the Effective and Compliance Dates
EPA received a total of four comment letters indicating opposition to the extensions of the effective and compliance dates, and an additional two that did not explicitly support or oppose the delay in the effective and compliance dates of the LCRR. In general, the commenters opposing the extensions stated that delaying the effective and compliance dates would delay the public health improvements that would be achieved with implementing the LCRR, in part or in total, as finalized on January 15, 2021.
2.1 Summary of Comments
The Association of Metropolitan Water Agencies (AMWA) "has concerns that EPA's proposal to delay the effective date ... would postpone the significant public health improvements that will be achieved by implementing the rule as finalized." They go on to state, "the benefits of this [delay] must be weighed against the costs of postponing the public health improvements that will be achieved when water systems begin to comply with the final rule in its current form." AMWA identifies the customer-initiated lead service line replacement provision, the lead service line inventory, and the school and child-care testing provisions as public health improvements that would be postponed by a delay of the rule effective and compliance dates. Also, the Kentucky and Tennessee Water Utility Councils (KY/TN WUC) of the American Water Works Association stated that they "are concerned that extending the dates of the Rule could delay the enhanced awareness, detection, communication, and elimination of potential lead exposure in communities." Another public commenter opposed the effective and compliance date extensions, arguing that EPA should instead simultaneously implement and revise the LCRR because of certain aspects of the rule that the commenter claims "would provide immediate public health benefits"  -  such as the LSL inventory and associated public notification requirements, as well as changes in the sampling requirements.
One anonymous commenter argued that the delay rule is tantamount to repeal of the rule and that EPA has not analyzed the effects on human health of the delay that the LCRR was designed to benefit.  The commenter stated further that EPA failed to address the substantive reasons that EPA provided in the LCRR for setting compliance dates or explained why it is preferable for the LCR to apply rather than the LCRR between January 2024 and Sept. 2024.  The commenter also claims that EPA failed to consider why it is worth forgoing the benefits of the rule for nine months in exchange for evaluation of the LCRR which, the commenter claims, could be done without delaying the compliance dates.  The commenter also argues that EPA cannot delay a rule to effectively repeal it while side-stepping statutorily mandated processes.  The commenter states that this "blanket delay" is not well-tailored and has no similarities to the narrowly tailored approach taken when EPA changed the earliest compliance dates in the 2015 effluent limitations guideline rule for the steam electric sector.  The commenter also claims that the Agency has failed to provide a meaningful opportunity for the public to comment "[b]ecause of these substantive oversights, including the failure to consider the merits of the LCRR and the deficiencies of the preexisting requirements in its proposal that would allow those preexisting requirements to remain in effect for a longer period of time.  In support of these arguments, the commenter cites the following cases in their comment:  Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57 (1983); Nat. Resources Def. Council v. Abraham, 355 F3d 179, 194 (2d Cir. 2004), California v. U.S. Bureau of Land Mgmt., 277 F. Supp. 3d 1106, 1122 (N.D. Cal. 2017). Air All. Houston v. EPA,906 F.3d 1049, 1065-1067 (D.C. Cir. 2018), FCC v. Fox Television Stations, Inc., 556 U.S. 502,515‐16 (2009); Clean Water Action v. EPA, 936 F.3d 308, 316 (5th Cir. 2019); and S.C. Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959, 967 (D.S.C. 2018).
This comment letter also claims the delay of the rule is deficient because EPA did not consult the U.S. Fish and Wildlife Service and the National Marine Fisheries Service under the Endangered Species Act (ESA), undertake an analysis under the National Environmental Policy Act (NEPA), or consult with the Advisory Council on Historic Preservation under National Historic Preservation Act on the effect of the suspension on historic properties.
The KY/TN WUC opposed the delay of the LCRR effective and compliance dates noting that EPA has already conducted extensive outreach during the development of the LCRR, "EPA's thorough and extensive review and stakeholder engagement process resulted in a final Rule that strengthens every aspect of the current rule and accelerates actions that can reduce lead in drinking water." This concept of EPA having already conducted extensive outreach was echoed by AMWA, noting that the agency "has been discussing options for the rule with these communities, other stakeholders, and the public since at least 2010." However, AMWA "agrees that engagement with at-risk communities is critical." The commenter opposing the delay and arguing that EPA should simultaneously implement and revise the LCRR, also expressed support for EPA's effort to seek additional stakeholder input on the LCRR. Another comment letter, from the American Water Works Association (AWWA) recommended that EPA consider the extensive outreach that the agency has already conducted on the LCRR. 
EPA received two comment letters that did not explicitly support or oppose the delay in the effective and compliance dates of the LCRR. One comment letter, jointly signed by the U.S. Conference of Mayors, the National League of Cities, and the National Association of Counties, indicated that the LCRR as published on Jan. 15, 2021 "satisfactorily addressed the local government perspective in both protecting public health and reducing lead contamination of drinking water." Another comment letter from AWWA requests that the effective and compliance dates be extended in an amount commensurate with the additional time used for stakeholder outreach. AWWA noted that the "[u]ncertainty ... which is naturally generated through reconsideration efforts" will make it difficult for public water systems to prepare for compliance and make investments needed to meet the interrelated requirements of the rule, as such efforts may prove to be wasted or wasteful if the Rule ultimately changes in its particulars."   Accordingly, AWWA requests that "all extensions to the effective date of the LCRR and any subsequent agency activity that seeks to change the LCRR should be accompanied by an extension to the compliance timeframes." AMWA, though opposing the delays in the LCRR implementation, also expressed support for an extension of the compliance dates by nine months if EPA delays the June 17, 2021 effective date of the rule.
EPA received a comment letter from the Antonin Scalia Law School, Administrative Law Clinic taking issue with EPA's compliance with the Administrative Procedure Act (APA) in delaying the effective date of the LCRR. This comment letter appears to relate only to the final rule EPA issued on March 12, 2021 extending the effective date of the LCRR to June 17, 2021.   
AWWA commented that any substantive changes to the LCRR should be preceded by a new proposed rule, citing the APA and Safe Drinking Water Act.
AWWA commented that the "deeply intertwined nature of the provisions within the final LCR and the resulting implications for water system implementation and risk reduction will very likely necessitate a complete evaluation of the implications of both changes in overall rule construct, as well as, what would appear to be small changes to the rule requirements."  

2.2 Agency Response
See EPA's response in Section III, of the Federal Register notice for the National Primary Drinking Water Regulations: Lead and Copper Rule Revisions; Delay of Effective and Compliance Dates final rule.
In addition, EPA notes that Section I of the proposal included a discussion of the distinction between the effective date and the compliance dates for NPDWRs and the statutory basis for the compliance date (86 FR 14064). EPA explained that the purpose of the delay in the compliance dates is to maintain the interval between the original effective and compliance dates (86 FR 14064). The commenter does not identify any specific provision of the SDWA that EPA failed to follow in this rulemaking when the commenter suggests, citing Air Alliance that EPA is "side-stepping the statutorily mandated process for revising and repealing" a rule.  EPA notes that it has not repealed a rule and the statutorily mandated process referred to in Air Alliance is significantly different than the requirements for revising a NPDWR under the SDWA.   
EPA also disagrees with the characterization that the delay is not "well tailored" as compared to the approach EPA took when it changed the earliest compliance dates in the 2015 effluent limitations guideline rule for the steam electric sector.  Similar to that 2015 rule, EPA is delaying the earliest compliance date in the LCRR.  Moreover, EPA notes its rationale for delaying the compliance dates in the 2015 effluent limitations guideline rule  -  upheld by the court -- is similar to the delay of the compliance dates for the LCRR.  
In response to the comment that EPA failed to provide a meaningful opportunity for the public to comment, EPA notes that the Agency sought comment on whether to extend the effective and compliance dates for the reasons provided in the proposal, the length of those extensions, as well as the scope of the compliance date extension (i.e. whether it should apply to the entire LCRR or certain components of the final rule) (86 FR 14065). EPA did not limit the scope of the comments and EPA has considered all comments received in reaching the conclusion to delay the effective and compliance dates.  Moreover, as noted in the proposal, some stakeholders claim that the LCRR is less protective than the existing rule and EPA explained that the purpose of the delay was to consider stakeholders concerns with the LCRR (86 FR  14064). EPA also notes that the commenter did not identify any specific "merits" of the LCRR or "deficiencies" of the LCR.  
To the extent, if any, that the cases cited by the commenter cannot be distinguished, this rulemaking to extend the effective and compliance dates, is not inconsistent with the holdings.  EPA's action in extending the compliance and effective dates is consistent with  EPA's authority under the Safe Drinking Water Act and the requirements of the Administrative Procedure Act.   
EPA also disagrees that the delay of the LCRR is deficient because EPA did not consult the U.S. Fish and Wildlife Service and the National Marine Fisheries Service under the Endangered Species Act (ESA), undertake an analysis under the National Environmental Policy Act (NEPA), or consult with the Advisory Council on Historic Preservation under National Historic Preservation Act on the effect of the suspension on historic properties. The ESA is not triggered because EPA's underlying action addresses human health as a matter of law; as a result, EPA lacks discretion to make ESA considerations the basis of the rule (see 50 CFR 402.03).  Even if the ESA were to somehow apply, EPA does not anticipate that the rule, or extending its compliance and effective dates, would have any impact on federally-listed species or critical habitat.  For similar reasons, the NHPA is not triggered.  Finally, EPA has been exempted by the courts from complying with NEPA under the SDWA.  See, e.g., 40 CFR Part 6.101.  
The Antonin Scalia Law School, Administrative Law Clinic comment appears to relate only to the delay of the effective date from March 16, 2021 to June 17, 2021 and not to the proposed extension of the June 17, 2021 effective date or the compliance dates. Therefore, it is beyond the scope of this rulemaking.  The comment highlights the proposed rulemaking to extend the effective date to December 16, 2021  -  i.e., this rulemaking -- as an example of the agency using proper procedures to delay an effective date. To the extent, the comment letter is also asserting that this rule requires both notice and comment and a reasoned explanation of the delay in the effective date to Dec. 16, 2021 showing that the agency considered relevant aspects of the problem, EPA has met that standard by providing notice and seeking comment on the proposed delay of the effective and compliance dates to December 16, 2021 and October 16, 2024, respectively, as well as a reasoned explanation for the effective and compliance date delays.  See section I of the preamble to the proposed rule and sections I-III of the final rule.  The comment letter does not note any specific concern with or deficiency in EPA's rationale.

3 Comments on Regulatory Components of LCRR
3.1 Summary of Comments
Many commenters on the proposal to extend the effective and compliance dates also provided input on all aspects of the LCRR, including the action and trigger levels, LSL  inventories, LSL replacement requirements, as well as the requirements for optimal corrosion control treatment, tap sampling, public education and notification, and school sampling, and EPA's compliance with both the substantive and procedural requirements for promulgation of a revised drinking water regulation, including the anti-backsliding provision in SDWA Section 1412(b)(9) and the requirement to provide an opportunity for a public hearing in SDWA Section 1412(d).
3.2 Agency Response
The extent and breadth of these comments demonstrates the significant concern that stakeholders, from a range of perspectives, have with the LCRR and the procedures EPA followed in promulgating the rule, and thereby support EPA's determination to delay the effective and compliance dates of the rule. EPA appreciates this input on the LCRR and is further considering these comments as part of its re-evaluation process.  The comments are included in the docket for this rulemaking, and have also been added to Docket EPA-HQ-OW-2021-0255 that EPA created for the LCRR virtual engagements to facilitate such further consideration. 
4 References
The White House. 2021. Executive Order 13990. Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis. Federal Register 86 FR 7037. January 20, 2021. Washington, D.C.: Government Printing Office.
The White House. 2021. Fact Sheet: List of Agency Actions for Review: https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/
The White House. 2021. Memorandum for the Heads of Executive Departments and Agencies: Regulatory Freeze Pending Review Federal Register 86 FR 7424. January 28, 2021. Washington, D.C.: Government Printing Office.
USEPA. 2020. Economic Analysis for the Final Lead and Copper Rule Revisions. December 2020. Office of Water.

