By Michael S. Feeley, John C. HeintzJulia E. Stein and Bobbi-Jo Dobush

On August 23, 2013, the California Department of Public Health (CDPH) released a draft Maximum Contaminant Level (MCL) of 10 parts per billion (ppb) for hexavalent chromium (Cr-6).[1]  The Clean Water Act is a federal law, which regulates water pollution.[2] It authorizes the states to develop water quality standards, such as MCLs, that police water contamination.[3]  These state standards must be at least as strict as those adopted by the EPA, but states can elect to maintain stricter regulations.[4]  Where the EPA has not adopted a standard for a particular contaminant, a state may adopt its own based on appropriate scientific evidence.[5]

Traditionally, California has enacted more stringent environmental protection standards than those adopted by the EPA.[6] California’s MCL for total chromium is 50 ppb.[7] The proposed rulemaking represents the culmination of a years-long process which began in October 2001, when then-Governor Gray Davis signed into law Senate Bill 351 requiring CDPH to adopt an MCL for Cr-6 by January 1, 2004; however, the MCL could not be set until the Office of Environmental Health Hazard Assessment (OEHHA) first established a Public Health Goal (PHG) for Cr-6.[8] On July 27, 2011, OEHHA published the nation’s first PHG for Cr-6 in drinking water, setting it at 0.02 ppb.[9] On July 18, 2013, in NRDC v. California Department of Public Health, Cal. Super. Ct. No. RG12643520, Judge Evelio Grillo of the Alameda County Superior Court directed CDPH to issue its draft MCL for Cr-6 by September 1, 2013.[10] The resulting draft MCL was submitted to the Office of Administrative Law (OAL) for public comment beginning at 12 p.m. on August 23, 2013.[11] Comments on the proposed rule are due by October 11, 2013.[12]

Proposed Rulemaking
CDPH’s proposed rule requires community water systems and nontransient non-community water systems (non-community water systems that regularly serve at least the same 25 persons over 6 months per year) to monitor for Cr-6, comply with the Cr-6 MCL of 10 ppb, and report the results of their monitoring.[13] Such monitoring must begin within six months of the effective date of the regulation; however, groundwater monitoring performed no more than two years prior to the effective date may be used to satisfy this requirement as long as such monitoring otherwise complied with the requirements in California Code of Regulations section 64432.[14] If total chromium results (which represent the combination of both Cr-6 and non-toxic trivalent chromium) for routine monitoring measure less than 10 ppb, chromium results may be used in lieu of Cr-6 monitoring.[15] CDPH may, based on a water system’s operations and the extent to which its chromium monitoring results exceed 10 ppb, require a water system operator to conduct a CDPH-approved distribution system chromium speciation study, which must include (but would not be limited to) quarterly monitoring of chromium, Cr-6, and water quality parameters affecting speciation.[16]

The rulemaking also specifies best available technologies (BAT) for Cr-6 removal from water systems.[17] It identifies such BAT as coagulation/filtration, ion exchange, and reverse osmosis.[18] The BAT for Cr-6 further requires that Cr-6 must be reduced to trivalent chromium prior to any coagulation/filtration.[19]

Systems that violate the Cr-6 MCL would be required to notify the public of potential increased cancer risk.[20] A water system will be required to include in its Consumer Confidence Report, among other things, a likely source for any Cr-6 detected; if no such source is specified, systems that detect any amount of Cr-6 would be required to select and report one or more of the likely sources of Cr-6, defined in the regulation as discharge from electroplating factories, leather tanneries, wood preservation, chemical synthesis, refractory production, textile manufacturing facilities, and erosion of natural deposits.[21]

If enacted, by CDPH’s estimation, the proposed rulemaking’s impacts would cost local government $16.5 million annually, and state government $1.8 million annually.[22] CDPH also estimates an annual cost of $1.0 million to privately owned water systems.[23] CDPH does purport to take into account additional costs for “pH adjustment in the finished water…as well as the cost of residual disposal” in the capital and O&M cost calculation it provides.[24] The Initial Statement of Reasons concludes that while “some of these water systems may be able to meet the MCL by blending their drinking water supplies as already occurs during drinking water distribution, at minimal cost…if these sources were to be treated using weak base anion exchange with disposable resin” the annualized treatment (capital and O&M costs) could range between $13.5 and $101.2 million per water system, depending on the size of the system.[25] Although CDPH estimates these costs in the body of the Initial Statement of Reasons, it does not include them in its Fiscal Impact Estimate or Cost Impact on Representative Private Person or Business in its Notice of Proposed Rulemaking.[26]

Public Comment Opportunities and Next Steps
Public hearings have been scheduled from 9-12 p.m. Friday, October 11, 2013, at both the California Department of Public Health in Sacramento and the Metropolitan Water District in Los Angeles.[27] The period for submitting written comments will close at 5 p.m. on October 11, 2013.[28] Written comments may be submitted by e-mail to, by fax to (916) 440-5747, or by mail to the Office of Regulations, California Department of Public Health, MS 0507, P.O. Box 997377, Sacramento, CA 95899-7377.[29]

After close of the comment period, CDPH will make any changes to the MCL based upon received comments and will subsequently publish the final MCL.[30] It may then initiate a second, 15-day public comment period to accept additional comments.[31] CDPH must then respond to all comments, whether written or orally presented at a public hearing, in its final statement of reasons for the proposed rulemaking.[32] Once this notice and comment phase has been completed, CDPH will submit its final MCL to the OAL.[33]

OAL will review the MCL for consistency with the Administrative Procedure Act, which may take up to 30 days.[34] If the OAL fails to act within 90 days of CDPH’s submission of the final MCL, the final MCL will be deemed approved.[35] Following OAL review, CDPH will file the MCL with the Secretary of State, and the effective date of the MCL will then be determined by a prescribed schedule.[36] However, in this case, the Alameda County Superior Court decision will influence the timing of the effective date; during the week of October 28, 2013, the Court will hold an evidentiary hearing regarding the quantity and nature of public comments and the length of time CDPH will require for a response.[37] Based upon that hearing, the Court is expected to set a date for CDPH’s issuance of the final MCL.[38] CDPH has stated it expects the MCL to be enforceable by the end of 2014.[39]

Latham & Watkins has extensive experience in the Cr-6 sphere and will continue to closely track this emerging issue. If you would like additional information, please feel free to contact Michael S. Feeley at (213) 891-7895, John C. Heintz at (213) 891-7395, Julia E. Stein at (213) 891-7836 or Bobbi-Jo Dobush at (415) 395-8013.



[1] Cal. Dep’t Pub. Health, Press Release: California Proposes Nation’s First Drinking Water Standard for Hexavalent Chromium (Aug. 22, 2013), available at

[2] Clean Water Act of 1972, 33 U.S.C. § 1251 et seq. at §101(a).

[3] Id. at §101(b).

[4] Cal. Health & Safety Code at § 116270(f), available at

[5] Cal. Dep’t Pub. Health, Chromium-6 Fact Sheet (Mar. 30, 2012),

[6] Elizabeth Shogren, EPA Refuses California’s Stricter Limits on Emissions, NPR (Dec. 20, 2007), available at; Jonathan K. London, Julie Sze & Raoul S. Lievanos, Problems, Promises, Progress, and Perils: Critical Reflections on Environmental Justice Policy Implementation in California, UCLA J. Envtl. L. & Pol’y 255, 260 (2008), available at

[7] Cal. Dep’t Pub. Health, Chromium-6 Fact Sheet (Mar. 30, 2012), supra n. 5.

[8] Senate Bill No. 351, Ortiz, (Feb. 20, 2001), available at; Cal. Health & Safety Code at § 116365(a), available at

[9] California Office of Environmental Health Hazard Assessment, Public Health Goal for Hexavalent Chromium (CR VI) in Drinking Water (July 2011), available at

[10] NRDC v. California Department of Public Health, Cal. Super. Ct., Order No. RG12643520 (Filed July 26, 2013) at *2.

[11] Cal. Dep’t Pub. Health, Notice of Proposed Rulemaking, Subject: Hexavalent Chromium MCL (DPH-11-005) at 1-2.

[12] Id.

[13] Cal. Code. Reg. at §§ 64431, 64432(a)-(d).

[14] Id. at §§ 64432(b), 64432(b)(1).

[15] Id. at §64432(b)(2).

[16] Id. at §64432(p).

[17] Id. at §64447.2, Table 64447.2-A.

[18] Id.

[19] Id.

[20] Id. at §64465, Appendix 64465-D.

[21] Id. at §64481(d)(2)(I), Appendix 64481-A.

[22] Cal. Dep’t Pub. Health, Notice of Proposed Rulemaking, Subject: Hexavalent Chromium MCL (DPH-11-005), supra n. 11, at 10-11.

[23] Id.

[24] Cal. Dep’t Pub. Health, Initial Statement of Reasons, Subject: Hexavalent Chromium MCL (DPH-11-005) at 18.

[25] Id. at 19.

[26] Cal. Dep’t Pub. Health, Notice of Proposed Rulemaking, Subject: Hexavalent Chromium MCL (DPH-11-005), supra n. 11, at 10-11.

[27] Id. at 1-2. (“Public hearings have been scheduled for Friday, October 11, 2013 at 9:00 a.m. to 12:00 p.m. in two locations: Sacramento, CA at the California Department of Public Health, 1500 Capitol Ave, Sacramento, CA 95814 and in Los Angeles, CA at the Metropolitan Water District of Southern California, 700 N. Alameda Street, Los Angeles, CA 90012.”)

[28] Id.

[29] Id.

[30] Cal. Dep’t Pub. Health, Drinking Water Regulations- Process (Feb. 5, 2013), available at

[31] Id.

[32] Cal. Dep’t Pub. Health, Chromium-6 in Drinking Water: MCL Update (Aug. 22, 2012), available at

[33] Cal. Dep’t Pub. Health, Drinking Water Regulations- Process, supra n. 30.

[34] Id. (Government Code § 11349.3 requires the OAL to respond to the MCL, by either approving or rejecting it, within 30 days.)

[35] Id.

[36] Id. (If the regulation is filed between September 1 and November 30, it becomes effective on January 1; between December 1 and February 29, it becomes effective on April 1; between March 1 and May 31, it becomes effective on July 1; and between June 1 and August 31, it becomes effective on October 1).

[37] Id.

[38] Id.

[39] Cal. Dep’t Pub. Health, Chromium-6 in Drinking Water: MCL Update, supra n. 32.