Hexavalent Chromium: Is the Maximum Contaminant Level a Done Deal?

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The California Department of Public Health Submits Its Final Regulation Package on Hexavalent Chromium:  Is the Maximum Contaminant Level a Done Deal?
On Tuesday, April 15, 2014, under pressure to meet the deadline set for that date by the Superior Court in the pending Natural Resources Defense Council v. California Department of Public Health, the California Department of Public Health ("CDPH") submitted its proposed final regulation package establishing the country's first-ever drinking water Maximum Contaminant Level ("MCL") for hexavalent chromium ("Chromium 6") to the Office of Administrative Law ("OAL").

Aside from two relatively minor changes that CDPH indicated had "no regulatory effect," the final regulation package looks very similar to the initial proposed regulations circulated for public comment back in August 2013.  The Chromium 6 MCL is unchanged from the proposed 10 ppb.  The regulations continue to allow only a six-month grace period before water systems must commence quarterly monitoring and come into compliance.  CDPH's cost and economic feasibility analysis remains unchanged from its initial examination of the number of potentially impacted wells and estimated treatment costs.

The final regulation package now faces only one further administrative hurdle before becoming effective – the Office of Administrative Law.  OAL is an independent executive branch check on the exercise of rulemaking powers by executive branch agencies.  OAL's role is to review all regulations adopted pursuant to the Administrative Procedure Act ("APA") against six standards, which include clarity, consistency and necessity, and to ensure that required procedures were followed before any regulation becomes effective.  Generally, a regulation must be legally valid, supported by an adequate record, and easy to understand in order to pass OAL muster.  A failure to satisfy OAL's review triggers a "disapproval" and the return of the regulation package to the submitting agency. 

OAL's role is generally considered ministerial in that it does not give OAL the authority to review or to evaluate the merits of the proposed final regulations, and CDPH's press release announcing the submission of its final regulation package expressed CDPH's expectation that the package would be approved and take effect on July 1, 2014.  However, OAL's approval is not necessarily assured in this case, where CDPH's own witness cautioned the Superior Court (in vain) against instituting an expedited timeline for finalizing the proposed regulation because of the potential that haste could generate grounds for an OAL disapproval and result in further delay.  In fact, OAL has "disapproved" at least a dozen final proposed regulations submitted by various California public agencies nearly every year for the last decade.

If an OAL disapproval decision is issued for CDPH's Chromium 6 regulations, the resulting work to resolve all issues and resubmit the final regulation package might approximate CDPH's preferred August 2014 timeframe to complete its work.  Notwithstanding that potential, the likelihood that OAL's review would produce a significant substantive change to the regulations – a change in the Chromium 6 MCL from 10 ppb to a higher or lower value or an extension of the grace period, for example – appears very slim.

Nossaman's regulatory and water contamination litigation attorneys have extensive experience in Chromium 6 matters and will continue to monitor the status of the Chromium 6 MCL as it moves one step closer to becoming law.

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