[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:
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Category Examples of regulated entities
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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.
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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 docket@epamail.epa.gov. 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
