Update on EPA Appellate Cases for LCRR

In a July 31, 2023 Status Report in the Newburgh Clean Water Project, et al., vs. EPA, EPA indicated that the target date for the proposed LCRI is now expected to be delayed by one month to October 2023. This case is currently in abeyance before the U.S. Court of Appeals for DC pending the release of the LCRI, despite EPA’s December 2022 request for a remand. In the December declaration from Assistant Administrator Radhika Fox in which the Agency requested the remand, AA Fox indicated that the LCRI would result in the replacement of all lead service lines as quickly as feasible, and potential provisions to lower the action level.

Additionally, in a unanimous August 11, 2023, decision in the Arizona et. al. vs. EPA case, the US Court of Appeals for DC held that EPA’s nine-month delay of the Lead and Copper Rule Revisions (LCRR) does not prevent states from voluntarily implementing the regulation as originally required. The appeal came after EPA’s June 2021 decision to extend LCRR’s effective date from January 2021 to June 2021 (and compliance deadlines from January 2024 to October 2024) after the administration took time to review the regulation. Following this review, EPA ultimately decided to allow the rule to take effect and update the rule (the Lead and Copper Rule Improvements or LCRI) ahead of the October 2024 compliance deadline for the LCRR. The Attorney Generals for the states of Arizona, Louisiana, Ohio, Oklahoma, and Texas had challenged the delay, indicating that it would result in harms to residents including higher state medical costs. The states also argued that the delay followed by the plans to revise the regulation added significant uncertainty for themselves and utilities. The Judge agreed with EPA who argued that because the states have delegated enforcement authority, they have the option to enforce the LCRR in accordance with the original deadlines.