By Michael S. Feeley, John C. Heintz, Bobbi-Jo Dobush and James J. Chang
On December 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 Spring 2014. The court held that CDPH must submit a final primary drinking water standard (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 Department 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 Department determines that it will modify the standard in such a way. The OAL must then review and approve or reject the standard within 30 days. 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 January 1, 2004. After CDPH failed to meet that deadline, the Natural Resources Defense Council and the Environmental Working Group sought a writ 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.
On August 23, 2013 CDPH published a draft regulation that would establish an MCL in drinking water of 10 parts per billion. We have previously summarized details of the proposed rule here. CDPH received over 18,000 written submissions on the draft, and has not yet provided responses to those comments.
Latham & Watkins has extensive experience in the Cr-6 sphere and continues 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, Bobbi-Jo Dobush at (415) 395-8013, or James J. Chang at (415) 646-7877.
 NRDC v. California Department of Public Health, Cal. Super. Ct. No. RG12643520 , Dec. 17, 2013 Order at 2-3.
 Cal. Gov. Code § 11349.3(a).
 SB 351 (codified at Cal. Health & Safety Code § 116365.5).
 NRDC v. California Department of Public Health, Cal. Super. Ct. No. RG12643520 , Jul. 26, 2013 Order.
 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.
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