Water Well Journal

July 2016

Water Well Journal

Issue link: http://read.dmtmag.com/i/692787

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Page 52 of 87

clearly "there is no evidence of a 'no ef- fect' level." Mateel contended the exist- ing safe harbor level set by the OEHHA was therefore "unscientific and arbi- trary" and was not consistent with re- quirements set forth in California law. A ruling in Mateel's favor would have had sweeping effects for busi- nesses operating in California—particu- larly for those businesses who regularly work with California's water supply. Purifying contaminated water, especially in large quantities, to such a low con- centration of lead is near impossible. Court Upholds Safe Harbor The court first explained its task was not to decide whether the OEHHA had come up with the "correct" interpreta- tion of its obligations under applicable regulations, but rather "whether the interpretation offered by the agency is reasonable in light of the regulation's language and purpose." The court concluded the OEHHA's use of OSHA's permissible exposure level was in fact reasonable, was consis- tent with the flexibility built into Cali- fornia's regulatory framework, and the OEHHA had not acted arbitrarily. The court noted the studies used by OSHA were of high scientific caliber, regarded as "the best synthesis of theory and actual research data." Mateel itself did not criticize the science behind those studies, but instead argued that the same data did not support a finding that expo- sures at 1000 times lower than that level "will have no observable effect." However, the court held deference to the OEHHA and the expertise of its sci- entists was the more appropriate course of action. The court concluded Mateel's arguments as to the OEHHA's obliga- tions under California law were unduly constrained and thus were unconvinc- ing. The court wrote: In sum, the determination of how to properly set the [safe harbor level] was made by an expert scientific agency reviewing complex scientific data and interpreting its own regula- tions in light of its scientific expertise, and its decisions were neither arbi- trary nor capricious nor entirely lack- ing in evidentiary support. While an appeal may follow, the case stands as another example of deference to agencies such as the OEHHA charged with implementing complicated and highly scientific and technical regula- tory programs. While California's environmental regulations related to lead exposure will remain the most stringent in the world, businesses can take some solace in the fact they continue to rely on the existing safe harbor level. WWJ Peter Berg has a civil engineering degree from the University of Colorado and works as an associate at Kraftson Caudle, in the Washington, D.C., metro area. Track Regulatory Issues Affecting Groundwater Industry Use NGWA StateTrack, a service to track state-specific legislative issues affecting the groundwater industry and your liveli- hood. The tracking tools take you be- yond policy news and let you follow issues as they move through your state's legislative bodies with more detail and more depth. Visit http://info.ngwa.org/ servicecenter/states/State_track.cfm. WWJ July 2016 51 Twitter @WaterWellJournl

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