Earlier this month, Judge Christopher E. Krueger of the Sacramento Superior Court issued an order invalidating the Maximum Contaminant Level (MCL) for hexavalent chromium. The California Department of Public Health (“DPH”) established an MCL of 10 μg/L, or parts per billion (ppb), pursuant to a rulemaking effort that concluded in 2014. (This rulemaking function has since been legislatively transferred to the State Water Resources Control Board (“State Board”), Division of Drinking Water as of July 1, 2014.) Hexavalent chromium is the chemical made famous by the movie Erin Brockovich.

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MCLs are promulgated for specific chemicals under the federal and California Safe Drinking Water Acts. Although established for drinking water programs, the MCLs are also often used as screening levels and cleanup standards at properties where potential environmental impacts are being investigated and remediated.  California MCLs are required under the state Safe Drinking Water Act to be at least as stringent as the federal MCL for a given chemical and as close to the California Public Health Goal (“PHG”) for the chemical as technically and economically feasible. The PHG, which is set by the California Office of Environmental Health and Hazard Assessment, is the level of a chemical at which it ostensibly poses no health risk. PHGs are not enforceable standards.  They are, as the name implies, simply goals.  The PHG for hexavalent chromium is 0.02 μg/L, or 20 parts per trillion, which is an extremely low number.

In 2014, the California Manufacturers and Technology Association and Solano County Taxpayers Association filed a petition for writ of mandate in the Sacramento Superior Court challenging the 10 ppb hexavalent chromium MCL on several grounds. Petitioners’ primary arguments were that DPH failed to consider the economic feasibility of this standard and whether the standard is, in fact, economically infeasible.  They contended these defects violated both the California Administrative Procedure Act and the California Safe Drinking Water Act, with the costs of compliance prohibitively expensive for water utilities and their ratepayers, especially for small utilities.

OLYMPUS DIGITAL CAMERAOn November 6, 2013, ASTM revised its standard for conducting Phase I environmental site assessments, known as Standard E1527-13 (entitled “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process”).  ASTM E1527-13 is the first revision to the ASTM Phase I standard since its 2005 revision of the standard (known as ASTM E1527-05).

The ASTM standards are a helpful tool for parties seeking to avoid, or at least minimize, potential liability pursuant to the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA,” also known as “Superfund”).  CERCLA imposes liability without regard to fault or negligence on present facility owners and certain past owners, as well as certain other parties, for any environmental contamination found on the property.  This means that a purchaser and current owner of land contaminated by the actions of others could be held liable under CERCLA for the cleanup of the property.  Fortunately, CERCLA has a few defenses for these situations for so-called “innocent landowners,” “bona fide prospective purchasers,” and “contiguous property owners.”  However, to qualify for these defenses, CERCLA requires a property owner to conduct “all appropriate inquiries” on or before the date of acquiring the contaminated property, among other requirements.

Prior to November 2005, there was no federally approved statute or regulation defining the procedure that a prospective purchaser must follow in conducting all appropriate inquiries.  However, on November 1, 2005, the United States Environmental Protection Agency (“EPA”), issued a final rule entitled the “Standards and Practices for All Appropriate Inquiries.”  Effective on November 1, 2006, the All Appropriate Inquiries Rule for the first time established federal standards and practices for conducting all appropriate inquiries, as a first step to qualifying for one of the elusive CERCLA defenses.