Cal. Mfrs. & Tech. Ass'n v. State Water Res. Control Bd.

• Decision Date: 17 May 2021
• Docket Number: C089451
• Citation: 278 Cal.Rptr.3d 668,64 Cal.App.5th 266
• Court: California Court of Appeals Court of Appeals
• Parties: CALIFORNIA MANUFACTURERS & TECHNOLOGY ASSOCIATION, Plaintiff and Appellant, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Respondent.

64 Cal.App.5th 266

278 Cal.Rptr.3d 668

CALIFORNIA MANUFACTURERS & TECHNOLOGY ASSOCIATION, Plaintiff and Appellant,

v.STATE WATER RESOURCES CONTROL BOARD, Defendant and Respondent.

C089451

Court of Appeal, Third District, California.

Filed May 17, 2021

Reed Smith, Raymond A. Cardozo, and Brian A. Sutherland, San Francisco, for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Matthew Rodriguez, Chief Assistant Attorney General, Robert W. Byrne, Senior Assistant Attorney General, Tracy L. Winsor and Russell B. Hildreth, Deputy Attorneys General, for Defendant and Respondent.

Robins Borghei, Todd E. Robins, Jed J. Borghei, and Taeva C. Shefler for Arvin Community Services District and Vaughn Water Company as Amicus Curiae on behalf of Defendant and Respondent.

RENNER, J.

The State Water Resources Control Board (Board) is charged with implementing the California Safe Drinking Water Act, a comprehensive statutory scheme designed to ensure that members of the public are provided with safe and clean drinking water. ( Health & Saf. Code, § 116270 et seq. ; the Act).¹ Among other things, the Board is responsible for setting drinking water standards for contaminants which may have an adverse effect on public health. (§ 116365, subd. (a).) This case concerns the drinking water standard for 1, 2, 3 - trichloropropane (TCP), a chemical known to cause cancer.

The Board promulgated a regulation setting the drinking water standard for TCP in 2017. ( Cal. Code Regs., tit. 22, § 64444, Table 64444-A.) Kern County Taxpayers Association and California Manufacturers and Technology Association (Association) challenged the regulation by petition for writ of ordinary mandate.² ( Code Civ. Proc., § 1085.) The trial court denied the petition. The Association appeals, arguing the Board failed to comply with the Act's requirement that new drinking water standards be "economically feasible." The Association also argues the Board failed to comply with the economic impact assessment requirements of the Administrative Procedures Act ( Gov. Code, § 11340 et seq. ). We reject both contentions and affirm.

I. BACKGROUND

A. The Federal and California Safe Drinking Water Acts

Congress passed the Safe Drinking Water Act (the federal Act) in 1974. ( Pub. L. No. 93-523 (Dec. 16, 1974) 88 Stat. 1660, codified at 42 U.S.C.S. § 300f et seq. ) The federal Act was intended "to assure that water supply systems serving the public meet minimum national standards for protection of public health." (See Bath Petroleum Storage, Inc. v. Sovas (N.D.N.Y. 2004) 309 F.Supp.2d 357, 366.) The federal Act empowers the U.S. Environmental Protection Agency (federal EPA) to establish national drinking water regulations applicable to all public water systems. ( 42 U.S.C.S. § 300f(1).) Such regulations are commonly expressed as maximum contaminant levels (MCLs), which refer to "the maximum permissible level of a contaminant in water which is delivered to any user of a public water system." ( 42 U.S.C.S. § 300f(3).)

Our Legislature passed California's version of the federal Act in 1976. (Stats. 1976, ch. 1087, § 2, pp. 4908-4930, formerly codified at § 4010 et seq., presently codified at § 116270 et seq. ) Among the legislative purposes of the Act are "to ensure that the water delivered by public water systems of this state shall at all times be pure, wholesome, and potable." ( § 116270, subd. (e).) To effectuate this purpose, the Act articulates a state policy to "reduce to the lowest level feasible all concentrations of toxic chemicals that, when present in drinking water, may cause cancer, birth defects, and other chronic diseases." ( § 116270, subd. (d).) The Act also expresses an intent to establish a safe drinking water program "that is more protective of public health than the minimum federal requirements." ( § 116270, subd. (f).)

As relevant here, the Act directs the Board to promulgate "primary drinking water standards for contaminants in drinking water." ( § 116365, subd. (a).) Primary drinking water standards include MCLs for contaminants that, "in the judgment of the state board, may have an adverse effect on the health of persons." ( § 116275, subd. (c)(1).) Section 116365, subdivision (a) directs the Board to set the MCL for a given contaminant "as close as feasible" to the public health goal for that contaminant, "placing primary emphasis on the protection of public health."³ Public health goals are set by the Office of Environmental Health Hazard Assessment, and reflect "an estimate of the level of the contaminant in drinking water that is not anticipated to cause or contribute to adverse health effects, or that does not pose any significant risk to health." ( § 116365, subd. (c)(1).) Unlike MCLs, which are the product of several statutorily enumerated considerations (described below), public health goals are based exclusively on public health considerations. ( § 116365, subd. (c)(1).) Public health goals are aspirational rather than mandatory or enforceable. ( § 116365, subd. (c) ; see also Ohio v. United States EPA (D.C. Cir. 1993) 997 F.2d 1520, 1529.)

Section 116365, subdivision (b), with which we are principally concerned, directs the Board to consider three criteria in setting MCLs. First, the Board must consider the public health goal for the contaminant. ( § 116365, subd. (b)(1).) Second, the Board must consider the national primary drinking water standard for the contaminant, if any. ( § 116365, subd. (b)(2).) Third, the Board must consider: "The technological and economic feasibility of compliance with the proposed primary drinking water standard." ( § 116365, subd. (b)(3).) "For the purposes of determining economic feasibility pursuant to this paragraph," subdivision (b)(3) elaborates, "the state board shall consider the costs of compliance to public water systems, customers, and other affected parties with the proposed primary drinking water standard, including the cost per customer and aggregate cost of compliance, using best available technology." ( § 116365, subd. (b)(3).) The present case turns on the meaning of "economic feasibility," as used in section 116365, subdivision (b)(3).

B. The Challenged Regulation

The Board began rulemaking proceedings to adopt an MCL for TCP in February 2017. An initial statement of reasons accompanying the proposed regulation describes TCP as a chlorinated hydrocarbon that has historically been used as an industrial solvent, cleaning and degreasing agent, and paint and varnish remover. TCP has also been found in soil fumigants. According to the initial statement of reasons, TCP has been detected in drinking water sources in a significant number of California counties (24 out of 58), including more than 100 drinking water sources in Kern County alone. As noted, TCP is a known carcinogen.

The initial statement of reasons sets forth the Board's findings for each of the criteria required by section 116365, subdivision (b) (summarized below), and proposes an MCL of 5 parts per trillion, the lowest and most protective of six possibilities considered by the Board.⁴ Most of the Board's findings are undisputed; even so, they are recounted here briefly for context.

First, the Board determined that the public health goal for TCP has been set at 0.7 parts per trillion, a determination the Association does not challenge. Thus, the Board was required to set the MCL for TCP "as close as feasible" to the public health goal of 0.7 parts per trillion. ( § 116365, subd. (a).)

Second, the Board determined that the EPA has not established an MCL for TCP, another determination the Association does not challenge. Thus, the Board was not required to consider any national MCL for TCP.

Third, the Board considered the technological and economic feasibility of six possible MCLs for TCP: 5, 7, 15, 35, 70, and 150 parts per trillion. For technological feasibility, the Board identified granular activated carbon as the best available technology for treating TCP in drinking water. The Board found that granular activated carbon has been shown to successfully reduce TCP in drinking water to levels below 5 parts per trillion, below the lowest of the MCLs under consideration. The Board thus determined that an MCL of 5 parts per trillion was technologically feasible, and "as close as feasible to the corresponding public health goal" of 0.7 parts per trillion. ( § 116365, subd. (a).) The Association does not challenge any of the Board's findings or conclusions with respect to technological feasibility.

Turning to economic feasibility, the Board focused on the estimated costs of compliance for each of the contemplated MCLs, assuming the use of granular activated carbon as a treatment technology. For each possible MCL, the Board estimated the number of water systems that would be affected, the aggregate annual costs of compliance for all affected systems statewide, and the average annual costs for service connections (e.g., households or customers) in large water systems (with 200 or more service connections) and small water systems (with fewer than 200 service connections). These estimates (which the Association does not challenge) are summarized in the table below:

Contemplated MCL	Annual aggregate costs (in millions)	Number of systems affected	Average annual cost for service connections in small water systems	Average annual cost for service connections in large water systems
5	$33.9	103	$609	$25
7	$26.9	89	$660	$24
15	$20.7	66	$600	$21
35	$11.3	45	$632	$14
70	$6.6	30	$501	$14
150	$3.2	12	$872	$10

As shown in the table, the Board estimated that aggregate, statewide annual costs of compliance for the lowest and most protective MCL (5 parts per trillion) would be $33.9 million, compared to $3.2 million for the highest and least protective MCL (150 parts per trillion). Customers in small water systems would pay more, the Board found, due to the smaller number of customers bearing the costs of compliance. But the estimated costs of compliance were not expected to increase significantly as...