California Finalizes Drinking Water Standard for Hexavalent Chromium

On April 15, 2014, the California Department of Public Health (CDPH) submitted the Final Statement of Reasons for the Hexavalent Chromium Maximum Contaminant Level (MCL) to the Office of Administrative Law.  No significant changes were made to the draft MCL of 10 ppb (µg/L) released by CDPH in August 2013, despite the receipt of approximately 18,000 comments on the proposal.  The MCL will become effective on July 1, 2014, once it is approved by the Office of Administrative Law. 

Prior to the draft hexavalent chromium MCL released by CDPH in August 2013, both California and federal law set a drinking water standard for total chromium, but neither California nor federal law set a drinking water standard specifically for hexavalent chromium.  The hexavalent chromium MCL in California will precede any drinking water standard for hexavalent chromium under federal law.

As previously discussed here and here, the hexavalent chromium MCL establishes the drinking water standard that water purveyors must meet in order to serve potable water to consumers.  Under existing California law, once the MCL is effective, public water purveyors will need to begin sampling for hexavalent chromium to meet the requirements of the California Safe Drinking Water Act (SDWA) and report the samples to CDPH.  If the samples exceed the MCL, purveyors have reporting obligations to customers and may be required to take a water source out of service under circumstances specified in the SDWA.

The publication of the hexavalent chromium MCL follows from an order issued by the Alameda County Superior Court requiring CDPH to set the MCL, previously discussed here.  See Natural Res. Def. Council v. Cal. Dep’t of Public Health, No. RG12-643520 (Alameda Sup. Ct. July 26, 2013). 

Although there had been discussion in recent weeks regarding including an extended grace period for compliance with the hexavalent chromium MCL for water purveyors, which would have triggered an extension of the comment period on the MCL, no extended grace period was included in the final version of the hexavalent chromium MCL.  More extended grace periods are frequently provided by the federal Environmental Protection Agency when establishing drinking water standards.  The California MCL provides for a six-month implementation period before compliance monitoring must begin, and an additional year to meet the standard, but one commenter indicated that a “lawsuit seeking to stay application of the MCL” would result if an extended grace period was not provided.
 
Barg Coffin will continue to monitor California’s efforts to develop a drinking water standard for hexavalent chromium as well as any litigation that challenges the new standard.
The Final Statement of Reasons is available here.

-  Rick Coffin and Dave Metres

For more information, please contact Rick Coffin at rcc@bcltlaw.com, (415) 228-5420, or Dave Metres at dmm@bcltlaw.com, (415) 228-5488.

California Issues Draft MCL for Hexavalent Chromium

On Thursday, August 22, 2013, the California Department of Public Health (CDPH) published notice of a draft Maximum Contaminant Level (MCL) of 10 ppb (µg/L) for hexavalent chromium.  The MCL proposal is higher than the 0.02 ppb public health goal adopted by OEHHA in 2011, but is significantly below the existing California MCL, in existence since the 1970s, of 50 ppb for total chromium and the current federal MCL for total chromium of 100 ppb.  CDPH will seek public comment on the draft hexavalent chromium MCL between August 23 and October 11, 2013.  CDPH will also hold public hearings in Sacramento and in Los Angeles on October 11, 2013, to receive comments on the proposed regulations. 

The publication of the draft hexavalent chromium MCL follows an order commanding issuance of a hexavalent chromium proposed MCL by the Alameda Superior Court in the NRDC litigation discussed in Rick Coffin’s August 30, 2012 post.  See Natural Res. Def. Council v. Cal. Dep’t of Public Health, No. RG12-643520 (Alameda Sup. Ct. July 26, 2013).  The court’s order also requires a further hearing in October 2013 to determine if the court will set a deadline for issuance of the final hexavalent chromium MCL.  Id.

Barg Coffin will continue to monitor California’s efforts to develop a drinking water standard for hexavalent chromium as well as the status of the NRDC lawsuit.

--David Metres

For more information, please contact Rick Coffin at (415) 228-5420, rcc@bcltlaw.com, Tom Boer at (415) 228-5413, jtb@bcltlaw.com, or David Metres at (415) 228-5488, dmm@bcltlaw.com.

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