On March 13, 2017, California River Watch (“River Watch”) filed a complaint against the City of Vacaville (“City”) alleging a violation of the federal Resource Conservation and Recovery Act (“RCRA”). The alleged violation arises from hexavalent chromium (“Chrome-6”) found in the City’s water supply. By carrying water with Chrome-6 in its water supply, River Watch alleges that the City is “transporting” a hazardous waste in violation of RCRA.

RCRA and Chrome-6 Background

Enacted in 1976, RCRA establishes standards and regulations for the creation, transportation, treatment, storage, and disposal of hazardous wastes. Under RCRA, a hazardous waste is a material that may cause or significantly contribute to an increase in mortality or serious illness, or may pose a substantial hazard to human health or the environment, when improperly treated, stored, transported, or disposed of, or otherwise managed. RCRA requires the United States Environmental Protection Agency (“EPA”) to establish criteria for identifying hazardous wastes and to establish lists of materials that constitute hazardous wastes. Chromium is one such substance that constitutes a hazardous waste under RCRA.

There are two main types of chromium—trivalent and hexavalent chromium, also known as Chrome-6. 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. Airborne chromium and chromium compounds are categorized as carcinogenic by EPA standards, but other organizations, such as the National Toxicity Institute, consider all compounds containing chromium to have carcinogenic potential.

In addition to federal standards, California has established its own standards and regulations for hazardous substances. California’s regulations under RCRA are administered and enforced by the Department of Toxic Substances Control. The federal maximum contaminant level (“MCL”) for chromium in drinking water is 100 parts per billion (“ppb”). The California MCL for total chromium in drinking water is 50 ppb. In 2014, California established a drinking water Chrome-6 MCL of 10 ppb.

Related Chrome-6 Litigation

River Watch’s RCRA claim relies upon the 10 ppb Chrome-6 MCL. However, a currently pending case, California Manufacturers and Technology Association v. State Water Resources Control Board (“CMTA”) complicates River Watch’s RCRA. CMTA challenges the administrative rulemaking process associated with the adoption of the California Chrome-6 MCL, questioning the sufficiency of the economic impact analysis of the MCL on small water systems. The case has been ongoing since the MCL was adopted in July of 2014. Following a tentative ruling on the case in August 2016, the court asked the parties to submit additional briefing on a number of issues related to the required rulemaking process if the MCL was overturned. The court also sought additional briefing on the impact of overturning the MCL on public water systems that have attempted to or have already complied with the MCL.

On March 24, 2017, the State Water Resources Control Board (“State Water Board”), the State agency tasked with adopting the MCL for Chrome-6 in drinking water, filed a motion seeking an order from the court that would allow the 10 ppb MCL to remain in effect while the State Water Board redoes the economic feasibility analysis for the MCL. As of April 20, 2017, the court has not ruled on that motion. Therefore, the validity of the Chrome-6 10 ppb MCL remains uncertain.

Legal Issues in River Watch’s Chrome-6 Case

As part of the City’s requirements as a public drinking water supplier under the Safe Drinking Water Act, the City tests and reports the chemical composition of the water it supplies to the public. These tests revealed that Chrome-6 is present in the City’s drinking water in concentrations that exceed the 10 ppb MCL. The same 10 ppb MCL being challenged in the CMTA case. As Chrome-6 is regulated as a hazardous substance under RCRA, the complaint alleges that the City illegally transported a hazardous substance by allowing Chrome-6 to be carried through its water supply. Thus, due to the health concerns associated with Chrome-6, the complaint contends that the City is creating an imminent and substantial danger to human health and the environment in violation of RCRA. The complaint requests that the court order the City to correct the violation by reducing the amount of Chrome-6 in its drinking water and to impose significant civil penalties.

This case raises questions under RCRA and the interplay between RCRA and other statutory requirements, such as the Safe Drinking Water Act. The court will have to determine whether carrying Chrome-6 in a municipal water supply equates to the transport of hazardous material under RCRA and whether a public water system’s activities undertaken in compliance with the Safe Drinking Water Act can operate as a bar to a case brought under RCRA.

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.