Legal Alerts Dec 20, 2017

Dispute Over Lead Testing in School Drinking Water Continues

State Water Resources Control Board Says It Will Enforce Permit Amendment

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In January, the State Water Resources Control Board adopted an amendment to domestic water supply permits, requiring water suppliers to test public and private school drinking water at the request of school officials. The permit amendment, which imposes the costs of testing on the water suppliers, was adopted without any public hearings or opportunity for public comment. Water suppliers were informed by the Board that their domestic water supply permits were being amended, without being given any opportunity for a hearing. 
 
Best Best & Krieger LLP filed a petition with the Office of Administrative Law on behalf of the California Municipal Utilities Association, challenging the permit amendment as an unlawful underground regulation. In response to the petition, on Nov. 21, the Division of Drinking Water’s executive director submitted a certification to the OAL that it would not “issue, use, enforce, or attempt to enforce” the template on which all permit amendments were based. The certification was made pursuant to section 280 of title 1 of the California Code of Regulations.
 
Consequently, OAL issued a notice that it was suspending further action on the petition. However, subsequent communications from Board staff make clear that, while the Board is no longer enforcing the template, it has not rescinded the permit amendments it had issued, and does intend to continue enforcing, or attempting to enforce, the issued permit amendments.  (In addition, recently enacted AB 746 imposes an affirmative duty on water providers to test, but at public school sites only. Although there is significant overlap between AB 746 and the Board requirement, the Board has no plans to rescind its permit amendment.)
 
BB&K submitted a letter to OAL on Dec. 15 on behalf of CMUA, requesting OAL to reject the Board’s 280 Certification and rule on the petition.
 
If you have any questions about this amendment or how it may impact your agency, please contact the author of this Legal Alert listed to the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.
 
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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