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.
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.
The court agreed with Petitioners that DPH failed to consider the economic feasibility of the 10 ppb MCL, particularly for small water utilities and their ratepayers. The court noted that DPH prepared exhaustive cost estimates. DPH estimated annual cost per water system, per service connection, and per water source for four different system sizes – small, medium, large, and very large – and for seven potential hexavalent chromium MCLs ranging from 1 to 30 ppb. These costs included monitoring costs, capital costs (total and annualized), and operation and maintenance costs. DPH also estimated the benefits of the standard, concluding it would prevent 12 cancer cases per year.
However, the court concluded that, despite preparing these thorough cost estimates, DPH failed to analyze their economic feasibility. For example, DPH estimated that the 10 ppb MCL would cost ratepayers of small water systems – those with 200 or fewer service connections – an average of $5,630 per year per service connection (generally one household or business). But DPH failed to analyze whether those small utility ratepayers could actually afford this cost. Although during the litigation DPH presented certain alternatives water systems could use to meet these costs, such as blending MCL-compliant and non-compliant water, seeking grant funds, and seeking waivers from the MCL, the court concluded DPH failed to consider these alternatives – and their impact on economic feasibility – during the rulemaking process. Doing so only during litigation is legally insufficient.
Because of this failure, the court did not address whether the standard is, in fact, economically infeasible, but it suggested without ruling that it probably is infeasible, particularly for these small system ratepayers.
The court rejected Petitioners’ argument that there were fatal flaws in DPH’s data and cost estimates. Nevertheless, the State Board will have to return to the drawing board and undertake additional rulemaking for hexavalent chromium, which could take several years and, unsurprisingly, end up back in litigation. The court rejected DPH’s request to leave the 10 ppb MCL in place in the meantime, indicating that doing so might “create an inexorable amount of momentum for [DPH] to simply readopt 10 ppb without adequately considering its economic feasibility.” The court also rejected DPH’s request to invalidate the MCL only as to small water systems. The court did not place a time limit on establishing a new MCL but noted that the legislature set a two-year deadline for doing so, although this deadline expired in 2004 and DPH was under a separate court order to submit an MCL by 2014. So the saga continues.