Presidential Memo May Impact Lead & Copper Rule Revision

On Dec. 22, 2020, the final version of the Lead & Copper Rule Revision (LCRR) was finalized and approved. It was then published in the Federal Register Jan. 15, 2021, but just five days later, on President Joe Biden’s first day in office, a memo from Ron Klain, President Biden's chief of staff, called for a regulatory freeze.

The memo mentions several criteria for the freeze, and specifically notes that anything that has not yet been published in the Federal Register would require review. However, one of the criteria could also impact the Lead & Copper Rule Revision which published in the Federal Register last Friday.

"With respect to rules that have been published in the Federal Register, or rules that have been issued in any manner, but have not taken effect, consider postponing the rules’ effective dates for 60 days from the date of this memorandum, consistent with applicable law and subject to the exceptions described in paragraph 1, for the purpose of reviewing any questions of fact, law, and policy the rules may raise," Klain wrote in the memorandum.

This section of the memo continues by adding a request for a 30-day public comment period during the 60-day delay of the effective date of any rule subject to the memo. The Lead & Copper Rule Revision indicates an effective date of March 16, 2021, so the 60-day delay would have minimal effect on the delay of its effectiveness. It would essentially delay it five days to March 21, 2021.

However, if public comment were to open, it may result in changes before that effective date. It is not clear what those changes could be, but proponents and detractors of the current version have made clear statements in support or dissent as it relates to the new Lead & Copper Rule Revision.

There are many agencies, organizations and activists who believe the revision published in January does not go far enough to protect U.S. citizens from lead in drinking water. They indicate the 15 ppb action and trigger level is too high and should be reduced. Additionally, they note the requirements for replacing lead service lines is too slow (the rule requires 3% replacement annually) and could leave communities vulnerable for decades.

Meanwhile, other associations, organizations and leaders are concerned that making the rule even more strict will place undue burden and hardship on utilities that are already struggling to maintain and follow a host of regulations with which they already must comply. These voices note that federal funding should be made available to aid in the compliance of the updated regulations.

While the future of the rule may not be clear, there is clear language already published in the Federal Register. A WWD breakdown of the LCRR and the industry response is available for viewing.