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Federal Register / Vol. 86, No. 47 / Friday, March 12, 2021 / Rules and Regulations 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 LCRRs effective date which is when the rule is codified into the Code of Federal Regulations is different from the compliance date. Section 1412b10 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
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to undertake activities and spend scarce resources on compliance obligations that could change at the end of EPAs review period.
III. Compliance With the Administrative Procedure Act Section 553 of the Administrative Procedure Act APA, 5 U.S.C.
553bB, 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 prepromulgation 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
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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 cashstrapped 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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