On May 5, 2017, the superior court issued its order in California Manufacturers and Technology Association v. State Water Resources Control Board regarding a regulation setting a maximum contaminant level (“MCL”) for hexavalent chromium (“Chrome 6”) in drinking water. The California Department of Public Health (“DPH”) promulgated the MCL pursuant to the Safe Drinking Water Act (sometimes referred to as the “Act”) and set the MCL at 10 parts per billion (“ppb”). When viewed against the Act’s mandates, the court found that DPH failed to adequately consider if compliance with the MCL was economically feasible. The court ordered DPH to withdraw the current MCL and establish a new MCL after properly considering the economic feasibility of compliance. The court did not address the pending deadlines that water purveyors are currently under in order to comply with the now stricken MCL or any other ramifications of its order.

Background on Hexavalent Chromium Regulation

There are two main types of chromium—trivalent and hexavalent chromium. Both forms raise environmental and human health concerns, but Chrome 6 is the more toxic form of chromium. While naturally occurring in limited amounts, Chrome 6 is generally produced by industrial processes. The United States Environmental Protection Agency has adopted an MCL for total chromium (i.e., both trivalent and hexavalent chromium) at 100 ppb. California has also set an MCL for total chromium at 50 ppb. The Office of Environmental Health Hazard Assessment has set a public health goal for drinking water Chrome 6 of 0.02 ppb. DPH was tasked with establishing an MCL that is as close as feasible to achieving the 0.02 ppb goal. After more than 10 years of regulatory proceedings, in July 2014, DPH adopted a drinking water Chrome 6 MCL of 10 ppb. After the MCL was adopted, the responsibility for the State drinking water program was transferred from DPH to the State Water Resources Control Board (“State Water Board”).

California Manufacturers and Technology Association and Solano County Taxpayers Association challenged the 10 ppb MCL for being too low and argued that compliance would be massively expensive. In particular, they argued that DPH failed to comply with substantive and procedural requirements imposed by the Safe Drinking Water Act when it set the MCL. In August 2016, the court issued a tentative ruling indicating that DPH did not properly evaluate the economic impact of the Chrome 6 MCL. In November 2016, the court requested additional briefing from the parties. On May 5, 2017, the court issued its final order to withdraw the current MCL.

Summary of Court’s Order

The court focused its review on whether the MCL complied with the Safe Drinking Water Act’s mandate that MCL standards be economically feasible. The court found that DPH failed to consider if compliance with the MCL would be economic feasibility. While DPH made various arguments to claim that it did consider economic feasibility, the court dismissed these arguments as post hoc rationalizations. The court reasoned that DPH could not substitute other analyses (such as a cost-benefit analysis, cost estimates, and statewide per household averages) in place of an economic feasibility analysis after the fact. For failing to meet its legislative mandate, the court ordered the 10 ppb MCL to be withdrawn. However, the court also noted that the State Water Board may once again set the MCL at 10 ppb, after properly considering the economic feasibility of such an MCL.

Next Steps

The State Water Board is still required to set an MCL that is as close as feasible to achieving the public health goal of 0.02 ppb, the court reiterated that mandate in its order. In light of the court’s decision, the State Water Board will have to conduct a thorough analysis of any new MCL to support its decision. The court’s final order may be appealed by the State Water Board as well. While the MCL of 10 ppb remains uncertain, one thing is sure—a drinking water MCL for Chrome 6 will be established in the future. The State Water Board may try and justify the 10 ppb once again but in the meantime, water purveyors should request direction from the State Water Board staff and focus the State’s attention on the court’s decision.

If you have any questions regarding regulations surrounding Chrome 6 or the potential effect of this litigation, please contact Barbara A. Brenner at barbara@whitebrennerllp.com, Kerry Fuller at kerry@whitebrennerllp.com, or Churchwell White LLP at (916) 468-0950.