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California Superior Court Strikes Down Regulation Setting Hexavalent Chromium Levels in Drinking Water

In a decision that could have wide implications for water purveyors throughout the State of California, the Sacramento Superior Court recently ordered the State Water Resources Control Board (SWRCB) to withdraw a 2014 regulation setting the maximum contaminant level (MCL) for hexavalent chromium (chromium-6) in drinking water at 10 parts per billion (ppb) and establish a new one. In challenging the regulation, the California Manufacturers and Technology Association and the Solano County Taxpayers Association (petitioners) argued that the SWRCB failed to properly consider the economic feasibility of complying with the MCL, thereby violating California’s Safe Drinking Water Act (SDWA). Petitioners also alleged violations of California’s Administrative Procedure Act (APA). Agreeing with petitioners, the court directed the SWRCB to withdraw the current MCL and establish a new MCL that considers the economic feasibility of compliance, with particular focus on small water systems. The court also ordered the SWRCB to respond to comments about the MCL’s economic feasibility, at least as to small water systems. [California Manufacturers & Technology Association v. State Water Resources Control Board, Case No. 34-2014-80001850 (Sacramento Super. Ct. May 5, 2017).]

Made famous by Erin Brockovich in her efforts to address groundwater contamination in the town of Hinkley, chromium is a naturally occurring element that is both odorless and tasteless. Total chromium refers to the sum of chromium-3 and chromium-6, which are the two most common forms of chromium found in drinking water. While chromium-6 may be naturally occurring, it may also be created by industrial processes. The U.S. Environmental Protection Agency (EPA) considers chromium-6 the more toxic form.

The SDWA directs the SWRCB to establish an MCL for chromium-6 subject to certain criteria. Among other things, these criteria require the SWRCB to set an MCL for chromium-6 as close as technologically and economically feasible to the public health goal of 0.02 ppb but not higher than 50 ppb (i.e., the MCL for total chromium adopted by California in 1977). Important here, the SDWA requires the SWRCB to “consider the costs of compliance to public water systems, customers, and other affected parties ” when determining “economic feasibility.” In addition, because the MCL is a regulation, the SWRCB must also comply with the requirements of the APA. Specifically, the APA requires that agencies respond to public comments and determine whether a regulation will have a significant adverse economic impact on California businesses.

In August 2013, the California Department of Health Services (DHS), the agency initially charged with setting the MCL, considered seven possible standards: 1, 5, 10, 15, 20, 25, and 30 ppb. The Department then proposed 10 ppb as the standard. The Department received 18,000 comments about the proposed MCL. Many of the comments claimed the MCL was not economically feasible. As required by the APA, the SWRCB issued a final statement responding to the comments and adopted the 10 ppb MCL. On July 1, 2014, the regulation became effective, and the SWRCB became responsible for implementing the MCL. Shortly thereafter, petitioners filed suit claiming that adoption of the 10 ppb MCL violated both the SDWA and the APA

The primary issue before the court was whether DHS “considered” economic feasibility (i.e., the cost of complying with the MCL) when setting the MCL for chromium-6 at 10 ppb as required by the SDWA. Petitioners argued that DHS did not properly consider the economic feasibility of complying with the MCL and that the 10 ppb MCL was, in fact, not economically feasible. In considering petitioner’s argument, the court noted that DHS thoroughly calculated the cost for each of the seven MCLs it considered using a cost-benefit analysis. Despite this, the court noted that DHS failed to take the required step of considering whether any of those cost estimates were economically feasible.

Though the court remanded the case back to the SWRCB with orders to withdraw the 10 ppb MCL for chromium-6, the decision may only represent a temporary setback for the SWRCB. As the court itself stated, “[i]t may well be that, after properly considering economic feasibility, the [SWRCB] will, once again, set the MCL at 10 ppb.” In the end, this decision was not a complete loss for the SWRCB, as the court was not convinced by petitioners’ argument that DHS’ data and cost estimates were flawed. Ultimately, there are many questions left unanswered by the decision, such as whether the 10 ppb MCL is actually economically and technologically feasible. What does seem clear is that a 10 ppb MCL for chromium-6 would have the highest impact on users of small water systems, who could see their water bills increase as much as $5,630 per year according to SWRCB estimates. As a result, small and large scale water purveyors and interested parties will want to continue to closely track the SWRCB’s activities to determine whether further comment and/or legal challenges would be appropriate. The court’s decision is accessible online at: http://www.waterboards.ca.gov/drinking_water/certlic/drinkingwater/documents/chromium6/cmtajud.pdf

(Matt Collins, Steve Anderson)