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Perchlorate, the groundwater contaminant du jour, has been found in 30 states that stretch from California to Maryland. The chemical has also been detected in the Colorado River, which provides water to more than 15 million people in the Southwest. In fact, Vermont appears to be the only state in which perchlorate was never used at all.

In Southern California, Perchlorate has been detected in drinking water sources in Los Angeles, San Bernardino, Riverside and Orange counties. In Northern California, perchlorate has been found in drinking water sources in Sacramento, Santa Clara and Sonoma counties. Perchlorate is used as an oxidizer in rocket propellant, which accounts for the principal source of the contaminant in drinking water supplies in California and Nevada. The chemical is also used in the manufacturing of such products as explosives, road flares, fireworks and airbag inflation systems.

Since 1997, more than 1,000 California public water systems, which collectively serve about 81 percent of California’s 35 million residents, have reported results from water system monitoring in accordance with California Department of Health Services (DHS) requirements. By June 2003, 84 systems reported perchlorate detections, with a total of 319 drinking water sources, primarily groundwater wells, affected. Those numbers had increased to 89 systems and 354 sources by March of this year.

Among those, 252 exceed California’s official Public Health Goal (PHG) of six micrograms per liter, which was adopted on March 11, 2004. A PHG is the level considered protective of human health. Drinking water sources with perchlorate above DHS’ action level — which had been four micrograms per liter — are required to notify local governing bodies. At 10 times the action level DHS recommends the source be removed from service. The higher standard announced on March 11 raises questions of whether the change will affect the cleanup of local groundwater sources and the delivery of water.

The issue of how much perchlorate is acceptable and safe in drinking water supplies has been the subject of much debate. The U.S. Department of Defense, which so far has identified its own contaminated sites in 18 states, and private industry argue for higher levels — as much as 200 micrograms per liter — while environmental groups contend that perchlorate poses a human health risk even at extremely low levels.

The U.S. Environmental Protection Agency has recommended a standard of one microgram per liter, which is the equivalent of a grain of salt in an Olympic-size swimming pool. The standard of 200 micrograms per liter for humans would probably exempt much of the contamination from cleanup because the majority of the perchlorate contamination in the United States ranges between four and 100 micrograms per liter.

The National Academy of Sciences has estimated that a program to clean up water contaminated with one microgram per liter would cost four times as much as a program to clean up water containing 32 micrograms per liter though the differences in health risks are considered by some to be minimal. For the Colorado River alone, the estimated cost to meet the federal EPA standard of one microgram per liter is $40 billion over 10 years. In California, Lockheed Martin and Aerojet-General have undertaken site cleanups estimated at $73 million and $40 million respectively.

Because no drinking water standard or maximum contaminant level exists for perchlorate, California’s Department of Health Services since 1997 has used an “action level” — a health-based advisory level to protect consumers. In 1997, DHS initially established an action level of 18 micrograms per liter. In 2002, with the release of the U.S. EPA’s recommendation of one microgram per liter, DHS revised the action level downward to four micrograms per liter, which coincided with the analytical detection limits for purposes of reporting and the lower range of EPA’s health studies.

In March of this year, California became the first state in the nation to regulate perchlorate by issuing its Public Health Goal. A PHG is neither a regulatory requirement nor a boundary between safe and dangerous levels of a chemical in drinking water. Instead, PHGs are considered health-protective goals that regulators and suppliers should strive to achieve if it is feasible to do so. The PHG’s perchlorate level of six micrograms per liter is the level in drinking water that does not pose a significant risk to human health and includes a 10-fold margin of safety. Among the 70 chemicals that have prompted PHGs, only four — lead, nitrates, fluoride and now perchlorate — have a margin of safety of 10-fold. Others are set at 100-fold or 1,000-fold.

Establishing a PHG completes the first of two steps necessary to set a working drinking water standard. The PHG is based solely on health concerns. Next, DHS will set a maximum contaminant level, which is supposed to come as close to the health goal as possible to the extent technically and economically feasible.

REMEDIATION

In its Resolution No. 92-49, California’s State Water Resources Control Board established a statewide cleanup policy for ground and surface waters, setting the initial goal for all cleanups at background levels. Several regional water quality control boards have publicly stated that “background” will be the cleanup goal for perchlorate sites. Since, with the exception of some Chilean fertilizers, and in playa-like environments in arid areas, perchlorate is not a naturally occurring substance the “background” cleanup level, under Resolution 92-49, would be zero.

The remediation of perchlorate in groundwater is a technical and financial challenge because the contaminant is extremely mobile in aqueous systems and persists for many decades under conditions typical for groundwater and surface water. (For a more detailed discussion of remediation and treatment technologies, go to www.clu-in.org/contaminantfocus/ default.focus/sec/perchlorate/cat/overview/.)

Regulatory-driven issues have a direct impact on litigation by private plaintiffs as well as claims by quasi-governmental agencies, water suppliers and municipalities. When perchlorate levels in wells fall below state standards, a plaintiff’s common law claims, including medical monitoring and remediation class action claims, are arguably moot given that the maximum contaminant level is the level at which the state has determined it is safe to consume water.

Under California Water Code § 102, “[a]ll water within the state is the property of the people of the state.” And under Article X of the California Constitution, the use of all water is “public use and subject to the regulation and control of the state.” The groundwater and aquifers within California are owned by the state. State of California v. Superior Court (2000) 78 Cal.App.4th 1019, 1031; National Audubon Society v. Superior Court (1983) 33 Cal.3d. 419, 441. Thus, neither a municipality, quasi-governmental agency nor a private citizen has any ownership interest in the groundwater or aquifer.

The Legislature has authorized DHS to establish a statewide drinking water regulatory program. Within this program, DHS establishes a maximum level of a contaminant permitted in groundwater or drinking water.

In Water Quality Ass’n v. County of Santa Barbara 44 Cal.App.4th 732 (1996), the court rejected a Santa Maria city ordinance that established water quality standards that were more stringent than those imposed by the regional water quality board. In rejecting the ordinance, the court ruled that the city was pre-empted from imposing more stringent water quality standards then those already established by the state. In short, this regulatory and statutory scheme excludes municipalities, quasi-governmental agencies, private parties or water purveyors from imposing their own drinking water standards.

Arguably when the contamination level is below the maximum contaminant level (MCL), no damage or injury exists. In Rose v. Union Oil Co. (1999) WL 51819, a judge in the federal Northern District of California held that plaintiffs’ claims were barred “because the levels of contaminants found are far below the relevant MCLs, because no state or federal agency has ordered any further investigation or remedial action, and because [there is] no evidence of an imminent and substantial endangerment to the environment . . .” (See also Price v. United States Navy, 818 F.Supp. 1323 (S.D. Cal. 1992), aff’d 39 F.3d 1011 (9th Cir. 1994)), where the court determined there was no imminent and substantial endangerment to the environment if the contamination is below levels acceptable to the state, and the state has certified that no further remediation is necessary.)

The positions adopted by regional water quality boards in determining cleanup levels will have a significant impact not only on the cost of the remediation but also on the ability of plaintiffs, private or otherwise, to recover damages. (See In Matter of Petition of Land’s Inc. 1998 WL 88467 (Cal. St. Wat. Res. Bd.), where the regional board concluded, over the objection of the Ventura County Environmental Health Division, that the presence of MtBE levels above the secondary MCL was acceptable, and site closure was appropriate.)

However, recent trial court rulings indicate that even if the contaminant level is below the MCL, plaintiffs’ claims may go to a jury if that level causes a “substantial interference” with the users rights. This issue has not been directly addressed in California’s appellate courts and remains a wild card in groundwater litigation.

Perchlorate is currently being evaluated by state officials for inclusion as a listed chemical under Proposition 65. In People v. Superior Court (American Standard), 14 Cal.4th 294 (1996), the California Supreme Court held that “. . . any water currently destined to be used as drinking water, as well as any water officially designated as suitable for drinking water . . .” was within the scope of Proposition 65. This decision, when read in conjunction with State Water Resources Control Board Resolution 88-63, which designated all surface and groundwater resources in California as suitable or potentially suitable for drinking water unless excepted, and Resolution 92-49, which established a statewide cleanup goal of “background levels,” will, if perchlorate is listed, substantially raise the stakes in perchlorate litigation.

Perchlorate is persistent and widespread. Depending on how the science is interpreted and the law applied, the chemical is either harmless or a serious threat to drinking water supplies.

Earl L. Hagström and Keith M. Casto are partners in the environmental law group at Sedgwick, Detert, Moran & Arnold in San Francisco. They are currently representing a defendant in perchlorate-related litigation in California.

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