Lawsuit Filed in August 2012 To Compel California To Set A Drinking Water Standard For Hexavalent Chromium

Hexavalent chromium (“Cr6”) is an element that is found in drinking water from natural sources and from historical industrial uses.  At present, there is no separate drinking water standard for Cr6.  There is a federal and state drinking water standard for total chromium (all valences of chromium including Cr6).  The federal drinking water standard for total chromium is 100 micrograms per liter of water (“ug/L”) and the California drinking water standard for total chromium is 50 ug/L.

On August 14, 2012, the Natural Resources Defense Council (“NRDC”) and the Environmental Working Group (“EWG”) filed a lawsuit in Alameda County Superior Court attempting to get a Court to set a date certain by which the California Department of Public Health (“DPH”) must set a drinking water standard for Cr6 in California.  The lawsuit relies on a 2001 statute passed in California in response to the Academy Award winning film Erin Brockovich that was released in 2000.  The primary focus of the movie was air/inhalation exposure to Cr6, not drinking water exposure. The statute, Health & Safety Code §116365.5, nevertheless required DPH to provide a report to the Legislature by January 1, 2003 regarding its progress in setting a drinking water standard for Cr6, and to finalize a drinking water standard for Cr6 by January 1, 2004.  For a number of reasons, that deadline was not met.

The current estimate for DPH to set a draft drinking water standard for Cr6 is July 2013, with a final standard adopted between July 2014 and July 2015.  The reason for the delays is that the toxicology of Cr6 through ingestion has been very uncertain, and from a number of experts’ perspectives, remains uncertain.  In order to set a drinking water standard under the California Safe Drinking Water, California must first set Public Health Goal (“PHG”) for the chemical in question. Health & Safety Code § 116365.  A PHG is set based solely on California’s evaluation of available toxicology. That process went through a number of iterations in California because a PHG was initially set that was not supported by the relevant science.  See DPH's timeline for drinking water regulations for Cr6.

In July 2011, California set a new PHG for Cr6 of .02 ug/L, more than 2500 times more stringent than the current drinking water standard for total chromium in California, and more than 5000 times more stringent than the current federal drinking water standard for total chromium.  The July 2011 PHG remains controversial among a number of scientists, and the process of setting a drinking water standard for Cr6 will be contentious.  The August 14 lawsuit will add to that contentiousness. 

This blog will periodically update the status of the development of a drinking water standard for Cr6 in California and the status of the NRDC lawsuit.

--Rick Coffin

For more information, contact Rick Coffin at (415) 228-5420, rcc@bcltlaw.com