On October 31, 2013, Judge Evelio Grillo of the Alameda County Superior Court held a hearing in the ongoing case of NRDC v. California Department of Public Health, Cal. Super. Ct. No. RG12643520 to take evidence regarding the quantity and nature of public comments on the draft Maximum Contaminant Level (MCL) for Chromium-6 (Cr-6) and the expected timing for California Department of Public Health (CDPH) to finalize the regulation. Judge Grillo had previously directed the CDPH to issue a draft MCL for Cr-6 before September 1, 2013. In advance of that deadline (August 23, 2013), CDPH published a draft regulation that would establish an MCL in drinking water of 10 parts per billion.[1] The 45-day public comment period on the draft MCL closed on October 11, 2013.[2]
At the October 31 hearing, the Court heard testimony from Michael McKibben of the CDPH Drinking Water Division. Mr. McKibben explained that CDPH had received over 18,000 written submissions during the comment period and took approximately 30 oral comments at two public hearings. Mr. McKibben observed that the comments included technical and fiscal analyses from water agencies and trade associations in addition to thousands of comments from the general public. He also compared the complexity of the Cr-6 rulemaking to the 2006-2007 process to establish an MCL for perchlorate,[3] and noted that CDPH estimated it would not complete its rulemaking process until August 2014. Following a cross-examination of Mr. McKibben by an attorney representing the Natural Resources Defense Council (NRDC), the Court directed the CDPH and NRDC to engage in a settlement conference to try to develop a mutually agreeable schedule for finalizing the MCL. The Court set a status conference for December 2, 2013 and indicated that it would impose an appropriate order if settlement talks do not succeed.
Latham & Watkins has extensive experience in the Cr-6 sphere and continues to closely track this emerging issue.
[1] Cal. Dep’t Pub. Health, DPH-11-005 Hexavalent Chromium MCL, available at http://www.cdph.ca.gov/services/DPOPP/regs/Pages/DPH-11-005HexavalentChromiumMCL.aspx.
[2] Id.
[3] Cal. Dep’t Pub. Health, R-16-04 - Perchlorate in Drinking Water, available at http://www.cdph.ca.gov/services/DPOPP/regs/Pages/R-16-04-perchlorateinDrinkingWater.aspx.
