Calif. To Make Waves With New Drinking Water Standard

by Latham & Watkins LLP
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On Dec. 17, 2013, Judge Evelio Grillo of the Alameda County Superior Court ordered the California Department of Public Health ("CDPH") to finalize regulations establishing drinking water standards for hexavalent chromium ("Cr-6") by the spring of 2014. The court held that CDPH must submit a final primary drinking water standard (i.e., a maximum contaminant level or "MCL") to the Office of Administrative Law ("OAL") for review and publication by one of two alternative dates: by April 15, 2014, if the CDPH does not determine that any of the public comments on its proposed standard requires it to modify the standard in a way necessitating a new 15 day public comment period under the Administrative Procedures Act; or by June 15, 2014, if the CDPH determines that it will modify the standard in such a way.[1] The OAL must then review and approve or reject the standard within 30 days.[2] Thus, a final enforceable rule is expected as soon as May 15, 2014, but no later than July 15, 2014.

The court’s ruling provides long-awaited clarity to the timeframe for California’s proposed regulations on Cr-6 — the first in the nation. In 2001, the California State Legislature directed CDPH to issue a Cr-6 MCL by Jan. 1, 2004.[3] After CDPH failed to meet that deadline, the Natural Resources Defense Council and the Environmental Working Group sought a writ of mandate commanding the CDPH to issue the regulation promptly. In July 2013, Judge Grillo issued an interim order directing CDPH to submit its proposed standard to the OAL in August 2013.[4] This article will first describe the development of the regulatory framework governing the adoption of the MCL to help frame the context for the current proposed rule. We then provide a summary of the proposed rule and the comments submitted to CDPH.

Originally published in Law 360 Feb. 28, 2014.

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