State Leads Way On Drinking Water Standard (Daily Journal)

On April 15, California became the first state in the nation to establish a drinking water standard for hexavalent chromium (Cr6). Prior to the new California standard, state and federal laws set drinking water standards for "total chromium" (all valences of chromium), but did not set a separate standard for Cr6. The new standard released by the California Department of Public Health (CDPH) for Cr6 was 10 micrograms per liter (ug/L), five times lower than the existing drinking water standard for total chromium in California, and 10 times lower than the federal drinking water standard for total chromium.

The announcement follows nearly 15 years of activity in California catalyzed by the 2000 movie "Erin Brockovich," which focused on Cr6 exposure in the town of Hinkley, California. Those 15 years have been filled with significant controversy regarding the science underlying the new drinking water standard. The release of the new standard will not resolve that debate.

A Widespread Problem

Cr6 occurs naturally in groundwater but has also been introduced into soil and groundwater from industrial processes. The chemical has been used widely across California for industrial activities as diverse as chrome plating metal to treating leather.

Whether from natural or human sources, Cr6 has been identified in drinking water sources in 51 of California's 58 counties, making the new standard applicable to communities across the state. CDPH estimates that approximately 100 public drinking water systems will be affected, while an association of public water purveyors has pegged the number at closer to 300 systems.

The Long Road to Set the Standard

Following the release of "Erin Brockovich," the state Legislature passed Senate Bill 351, which required California to adopt a drinking water standard for Cr6 by Jan. 1, 2004. Health and Safety Code Section 116365.5. Implementation of the statute was delayed by a series of scientific investigations of the toxicology of Cr6 associated with ingesting the chemical in drinking water.

In July 2011, California's Office of Environmental Health Hazard Assessment (OEHHA) established a "public health goal" for Cr6 of 0.02 ug/L. The public health goal relied on a toxicological study of Cr6 conducted by the National Toxicology Program (NTP) that was released in 2008. Based on the NTP study, the public health goal for Cr6 was set at a level 2,500 times lower than the drinking water standard for total chromium in California at the time. A public health goal is not an enforceable drinking water standard under the California Safe Drinking Water Act (SDWA). The public health goal is set by OEHHA, based on its interpretation of available toxicology, to reflect the concentration at which the chemical is "not anticipated to cause or contribute to adverse health effects, or ... pose any significant risk to health." Health and Safety Code Section 116365(c). CDPH is then required to establish a drinking water standard as close to the PHG as is practical, taking into account "technological and economic feasibility." Health and Safety Code Section 116365(b).

Before CDPH could act in response to the 2011 public health goal, a petition was filed to request that OEHHA reconsider the public health goal based upon a number of new peer-reviewed toxicological studies that put in question the 2008 NTP study. The July 2012 petition takes the position that the 2011 public health goal is far too conservative. Nearly two years later, OEHHA still has not formally responded to the petition requesting reconsideration of the public health goal.

However, while the petition for reconsideration was pending with OEHHA, CDPH issued a draft standard for Cr6 in August 2013 of 10 ug/L - five times lower than the existing drinking water standard for total chromium in California, but significantly higher than the 2011 public health goal. Despite the receipt of 18,000 comments on the draft standard, the final drinking water standard issued by CDPH on April 15 left the drinking water standard at 10 ug/L.

Impact of the New Drinking Water Standard

If approved in its current form by the Office of Administrative Law as expected, the drinking water standard for Cr6 of 10 ug/L will go into effect on July 1, 2014. The SDWA requires sampling by water providers within six months after the effective date of a new drinking water standard to evaluate compliance. Should those sample results exceed the drinking water standard, water providers may be obligated to remove a water source from service or take other steps to comply with the standard.

For a number of water providers, significant capital improvements may be necessary to satisfy the new standard. To fund these improvements, some providers have estimated that water rates may increase up to $50 per month ($600 per year) for users in certain areas.

In addition, where groundwater cleanups are underway, the new standard for Cr6 may reset the playing field and unsettle established expectations. In many circumstances, the new drinking water standard will result in meeting a new cleanup standard for groundwater. Thus, for both new and old cleanup efforts, the new standard may impact the goals of remedial actions and result in increased cleanup costs.

The Future: Likely Litigation and Federal Regulation

The timing of the publication of the drinking water standard for Cr6 in April resulted from an order issued in a suit filed by Natural Resources Defense Council and Environmental Working Group against CDPH that sought to force the agency to finalize the standard. See Natural Res. Def. Council v. Cal. Dep't of Public Health, No. RG12-643520 (Alameda Sup. Ct. July 26, 2013). This litigation may portend future challenges, as both drinking water purveyors and environmental advocates have assaulted the new standard.

Purveyors have argued that the standard is too stringent, fails to take into account the most recent peer-reviewed science, and improperly ignores the SDWA's requirements to consider what is technologically and economically feasible. For some purveyors, the effort to design and construct the necessary improvements to meet the standard will likely take significantly longer time than the SDWA allows. By contrast, federal law usually allows up to five years to come into compliance when significant capital improvements are required.

Environmental advocates counter that the standard is not stringent enough. They argue that the standard is 500 times higher than the 2011 public health goal, and that the technical and economic justifications cited by CDPH improperly inflated water treatment costs, while discounting the benefits of a more stringent standard.

The new California standard also may jumpstart federal efforts to establish a nationwide drinking water standard for Cr6. On April 17, just two days after CDPH announced the new standard, the U.S. Environmental Protection Agency indicated that it is moving forward with its long-pending assessment of the human health risks of Cr6. This assessment will be employed for a variety of regulatory purposes, but most prominently as the basis for establishing a federal drinking water standard.

Thus, although California is poised to have the first binding primary drinking water standard for Cr6 in the nation, these efforts may be merely the first salvo in a nationwide battle over regulating Cr6 in drinking water.

Rick Coffin is a founding partner of Barg Coffin Lewis & Trapp LLP, focusing on the defense of environmental enforcement and toxic tort lawsuits, the defense of Proposition 65 claims and the prosecution of insurance coverage claims on behalf of policyholders.

Dave Metres is an associate with Barg Coffin Lewis & Trapp LLP. His practice focuses on environmental litigation and compliance counseling.