Citizen Health & Safety
UPDATE: California Leads Nation on Limiting 'Erin Brockovich' Chemical in Drinking Water
by Katie Weatherford, 6/12/2014
UPDATE (6/12/2014): California has finalized its long-awaited standard limiting the permissible level of hexavalent chromium (sometimes called “chromium 6”) in drinking water. The standard was set at 10 parts per billion (ppb), equivalent to about five teaspoons of the toxic chemical in an Olympic-sized swimming pool. Once the standard takes effect on July 1, California will be the first state to impose a limit on this harmful contaminant in drinking water, taking action even before the U.S. Environmental Protection Agency (EPA).
According to estimates from the California Department of Public Health, the new standard will prevent approximately 12 cancer cases every year. The standard will cost 128 of California’s water systems roughly $156 million each year, 65 percent ($101 million) of which will be incurred by systems serving over 10,000 connections.
|Estimated Annual Cost Per System by Water System Size|
|Water System Size (No. of Service Connections)||0-200||200-999||1000-9,999||10,000+|
|No. of Affected Systems||55||10||29||34|
|Annual Cost Per System||$251,000||$378,000||$1,276,000||$2,983,000|
Source: California Department of Public Health, Initial Statement of Reasons (Aug. 4, 2013)
Opponents of the new rule have already filed a lawsuit on grounds that the new standard is too stringent and costly. Basing their claim on a study paid for by the American Chemistry Council, the groups claim that the new standard is more stringent than necessary to protect the public. They also argue that state residents will likely see large increases in their utility bills as water systems pass their costs on to their customers.
However, public advocacy groups disagree and are concerned that the new standard fails to adequately protect public health from the risks associated with drinking water contaminated with this toxic substance. An attorney with the Natural Resources Defense Council (NRDC) told the Los Angeles Times that “[t]he department both inflated water treatment costs and underestimated the benefits of a stronger standard.” According to Clean Water Action (CWA), “In addition to being 10 years late, the standard is 500 times higher than the level that State scientists have determined would not result in significant health problems.” Explaining further, CWA notes that most water systems in the state already meet the 10 ppb limit, and therefore do not require any treatment, although the water may still contain dangerous levels of hexavalent chromium: “That means that 85% of the contaminated sources will not be treated and potentially millions of Californians will continue to be exposed to unsafe levels of this carcinogen.”
. . .
On July 18, a California court ordered the state's Department of Public Health to propose a standard on the maximum level of hexavalent chromium (also called chromium-6) permitted in drinking water by the end of August. The court order stems from a lawsuit filed in August 2012 by the Natural Resources Defense Council (NRDC) and Environmental Working Group (EWG) against the California Department of Public Health for failing to adopt a standard by Jan. 1, 2004, as required by state law. The department is now nine years past due in developing a standard and is still in the early stages of rulemaking, yet California will be the first state to set a drinking water standard for hexavalent chromium and will have one before the federal government.
What is Hexavalent Chromium?
Hexavalent chromium is an odorless and tasteless heavy metal predominantly used in industrial processes, such as making chrome plating, developing dyes and pigments, treating wood, and producing steel and other alloys. It is a known human carcinogen and can cause severe health problems when it is inhaled, ingested, or if it touches the skin. Moreover, improper disposal of products containing chromium, waste from industry, and coal ash from electric utilities, either directly onto the ground or into nearby lakes and streams, has caused drinking water contamination.
Chromium-6 is perhaps best known as the Erin Brockovich chemical. The film depicted the struggles of residents in Hinkley, CA, who sued Pacific Gas & Electric for contaminating the town's drinking water with hexavalent chromium and making many residents ill. PG&E had allowed the contaminated water to drain into unlined ponds, which then leached into the town's water aquifer. Although the class-action suit against PG&E was settled in 1993, the residents of Hinkley and nearby towns are still fighting to force PG&E to clean up the contamination.
The U.S. Environmental Protection Agency (EPA) set a drinking water standard for chromium in 1977, which California adopted, but there is no separate national or state standard for hexavalent chromium. The existing standard was established to address the non-cancer effects of both trivalent and hexavalent chromium, although hexavalent chromium is much more toxic than the trivalent form.
Since then, EPA has relaxed the standard to allow for more chromium in drinking water, but California has kept the more stringent standard. According to the World Health Organization's Guidelines for Drinking-water Quality, "Because the health effects are determined largely by the oxidation state, different guidelines for chromium(III) and chromium(VI) should be derived." A separate standard could address the health risks, including cancer, associated specifically with exposure to the hexavalent form of chromium.
In 2001, in response to heightened public concern about the health risks of ingesting hexavalent chromium, California enacted a law requiring the Department of Public Health to adopt a maximum contaminant level for hexavalent chromium in drinking water no later than Jan. 1, 2004.
Nine-Year Delay in Violation of State Law
Under California law, as a prerequisite for proposing a new drinking water standard, the Office of Environmental Health Hazard Assessment (OEHHA) must first set a public health goal identifying a level at which there is no significant health risk to humans. In July 2011 – seven years after the statutory deadline – the office set the goal for hexavalent chromium at 0.02 micrograms per liter (µg/l). This left the Department of Public Health with the responsibility to set an acceptable level for hexavalent chromium. When it had failed to do so by August 2012, NRDC and EWG filed suit asking the court to order the department to adopt a standard. The two environmental groups argued that the department's lengthy and unjustified delay in setting the standard puts the health of millions of Californians at risk.
In February 2013, the department submitted a proposed standard to the Secretary of Health and Human Services for review. Although this stage, along with a public hearing and a 45-day public comment period, was supposed to be completed by July 2013, the department missed the deadline.
The court agreed with NRDC and EWG that these delays were unreasonable and ordered the department to publish the proposed standard for public comment by the end of August and to hold the public hearing before Oct. 28. The court noted that "the Department has taken two years to publish its proposed Standard – an amount of time equivalent to the Legislature's total allotted time for both the Office and the Department collectively to complete all required work to publish the PHG, the proposed Standard, and the final Standard."
But No Final Deadline Set
However, before the rule can become final, the department must send it to the state Office of Administrative Law for a second review. The office has 30 days to decide whether to adopt or reject the standard. If the department does not finalize the standard within one year of publishing the notice of the proposed rule, it must restart the entire process. Since it has already taken the department nine years to publish a proposed rule, NRDC and EWG asked the court to set a deadline for finalizing the standard of 115 days from the date of the court order.
The court declined to do so, writing that that "it lacks sufficient information to set, without undue speculation, an appropriate deadline." While it said one year is the "maximum time the APA allows an agency in routine circumstances to finalize a regulation before its Notice of Proposed Action becomes ineffective...," the court also implied that a full year may be too long to finalize the standard.
The court order was released just days before the start of National Water Quality Month. This underscores the fact that although water quality has greatly improved in the decades since Congress enacted the Clean Water Act and Safe Drinking Water Act, more work remains. One step would be for the EPA to issue a national drinking water standard for hexavalent chromium.
Until EPA does put a national standard in place, states will be left with the task of protecting Americans from unnecessary exposure to hexavalent chromium in drinking water. As it often is, California is on track to be the leader on this public health issue. We hope it starts a trend.
Editor’s Note (6/12/2014): This article was originally published on Aug. 20, 2013 under the title “Court Orders California to Limit 'Erin Brockovich' Chemical in Drinking Water by End of August.”