Thursday, June 5, 2014

California’s Hexavalent Chromium MCL Set To Take Effect July 1 – Or Is It?

On May 28, 2014, California’s Office of Administrative Law approved the hexavalent chromium regulation initially proposed in 2013 for a maximum contaminant level (MCL) of 10 ug/L.  The rule was filed with the Secretary of State the next day, and is now set to take effect on July 1.  Read up on the history of the rulemaking process, and see the California Department of Public Health’s (DPH) Chromium-6 in Drinking Water: MCL Update web page for more information on the rule itself.

This rulemaking process has been even more politically charged than usual, with intense pressure from public opinion fueled by often misleading journalism (see Why I Think California’s Proposed Hexavalent Chromium Drinking Water MCL May Do More Harm Than Good.).  But there may yet be hope for those of us who wish to see science, and not political whimsy, guide the implementation of drinking water standards.  The California Manufacturers & TechnologyAssociation (CMTA) and the Solano County Taxpayers Association (SCTA) filed a Petition for Writ of Mandate in the Superior Court of California, Sacramento on May 29, the same day the rule was being filed with the Secretary of State, over the newly proposed MCL (Solano taxpayer group files suit against state on water standards).

The case, #34-2014-80001850, which you can download a copy of here, asks that: 
  1. "A peremptory writ of mandate issue, pursuant to Code of Civil Procedure section 1085, Health and Safety Code sections 116365 and 116365.5, and Government Code sections 11342.2, 11346.3, and 11346.9, ordering Respondent to withdraw the current MCL and to promulgate instead a new MCL at a level that is economically feasible;"
  2. In the alternative, that an alternative writ of mandate be issued, exparte, ordering Respondent to request that OEHHA review the PHG as required by 116365(e)(1) or, in the alternative, to show cause why a peremptory writ of mandate should not issue."
The petitioners give 5 grounds for issuance of the writ: 
  1. “DPH (Department of Public Health)failed to comply with its mandatory statutory duties to (a) determine the economic feasibility of compliance with the proposed MCL, (b) base the MCL on the economic feasibility of compliance, and (c) to consider the costs of compliance to public water systems, customers, and other affected parties, including the cost per customer and aggregate cost of compliance, using best available technology.”
  2. “Despite acknowledging that the national MCL for chromium is the national primary drinking water standard adopted by the U.S. EPA to address exposures to hexavalent chromium, DPH failed and refused to consider the national standard in its adoption of the California hexavalent chromium MCL, as required by Health and Safety Code section 116365, subdivision (b)(2).”
  3. “DPH violated its clear, present, and mandatory obligation under Government Code section I 1346.9, subdivision (a)(3), to substantively respond to all relevant public comments…”
  4. “DPH failed to comply with its clear, present, and mandatory duty under Government Code section 11346.3 to assess the potential for adverse economic impact on California business enterprises and individuals, avoiding the imposition of unnecessary or unreasonable regulations or reporting, recordkeeping, or compliance requirements.”
  5. “In issuing the hexavalent chromium MCL based on a PHG that is based on obsolete science, DPH exceeded its quasi-legislative authority to promulgate MCLs that are reasonably necessary to effectuate the purpose of the SDWA and that are consistent with the SDWA. DPH has not adopted an MCL consistent with the SDWA's statutory requirements that the MCL be based on a PHG that, in turn, is based on current scientific data, evaluated using the most current scientific principles, practices, and methods.” 
Certainly the crux of the issue against the regulation is that the Public Health Goal (PHG) that the MCL is based on was itself based upon a faulty toxicological analysis.  More recent studies show that hexavalent chromium is not nearly as toxic as originally thought, and support the argument that DPH has rushed into this regulation at the expense of the people of California. 

Hopefully the Superior Court of California will take this matter into consideration quickly and put a stop to implementation of a grossly unfair regulation that provides no protection of public health.