ENVIRONMENTAL LEGAL BLOGS

PERCHLORATE LITIGATION IN SANTA CLARITA AND RIALTO

     Today's newspapers bring word of perchlorate-related litigation in 2 Southern California communities-- Santa Clarita and Rialto.

     According to the Los Angeles Times, 4 environmental groups--  the Sierra Club, Friends of the Santa Clara River, the Center for Biological Diversity and the California Water Impact Network-- have sued to halt the Santa Clarita-area construction of 1,000+ residential units as part of a project known as Riverpark.  The suit contends that the Santa Clarita City Council improperly approved the project last month despite environmental concerns (the project is near a drinking-water well contaminated with perchlorate above the 6 ppb State-recommended standard).

     The Times' article also references the fact that another, larger Santa Clarita-area project has been tied up in first, litigation, and, second, a request by the Los Angeles Regional Planning Department for the developer to conduct further environmental study because of the just-referenced perchlorate-contaminated drinking-water well.  The County plans in August to review the new study.

     Meantime, the San Bernardino County Sun reports that the City of Rialto has sued the County of San Bernardino and others over the County's plan to add a surcharge to residents' trash bills as a means to pay for clean up of perchlorate-contaminated area drinking water.  The City contends that the County, the Defense Department and others allegedly responsible for the contamination situation should pay the clean-up freight instead.

     For previous news and views regarding perchlorate, including the question of whether the perchlorate health threat is even real, go to the right-hand side of this Blog and under "Categories" click on "perchlorate".

    

PERCHLORATE MAY BE ADDED TO PROPOSITION 65 LIST AS A REPRODUCTIVE TOXICANT

     According to the May 31, 2005 publication California Environmental Insider  (subscription only access), the California "Development and Reproductive Toxicant Identfication Committee" (or "DART") is considering whether or not to list perchlorate as a reproductive toxicant under  "Proposition 65".  As you may recall, this is the Proposition, passed overwhelmingly by the State's voters in 1986, that  (among other things) mandates a health warning be given in certain circumstances to persons exposed to a carcinogen or reproductive toxicant.  The DART Committee is scheduled to deliberate about perchlorate on August 11, 2005.

     If perchlorate is listed as a Proposition 65 reproductive toxicant, the ramifications of the listing will be highly noticeable to the average consumer.  Since reports of perchlorate contamination in, for example, lettuce and milk have surfaced (see Post of February 24, 2005), these food staples and perhaps others would have to bear health warnings.

     There is some chance that the levels of perchlorate found in lettuce and milk could be exempt from the warning requirement if the Office of Emergency Health Hazard Assessment ("OEHHA") establishes a "No Observable Effect" level covering the amounts of perchlorate found in these staples.   While, as previously covered in this Blog (see Post of April 5, 2005), OEHHA has established a Public Health Goal for perchlorate of 6 ppb in drinking water, technically this standard is irrelevant to establishing an exemption from a duty to warn under Proposition 65.  The exemption standard could be set higher or lower.

     California Environmental Insider reports that comments to the DART Committee on whether or not to list perchlorate can be submitted until a deadline of July 19, 2005.  For further information, go to OEHHA's webpage discussing perchlorate.

     Frankly, it is strongly arguable that the major beneficiaries of any perchlorate warning requirement would be lawyers, not consumers.  As has happened with Proposition 65 listings in the past, the plaintiffs' bar will benefit from bringing suits alleging failure-to-warn and the defense bar will benefit from defending those suits.

     However, as detailed on this Blog (Post of March 9, 2005), it is unlikely that perchlorate contamination of foodstuffs is having any impact on health in the United States.  While perchlorate inhibits iodine uptake and thus in theory can lead to iodine deficiency, in fact consumers in this country (whether meat-eaters or vegetarians) appear to take in enough iodine from non-perchlorate impacted food to offset any iodine uptake inhibited by the chemical's presence in such things as lettuce and milk.  Query whether society shouldn't expend its resources on higher health priorities?

    

PERCHLORATE: SEN. FEINSTEIN JOINS CRITICS OF NAS REPORT AND EPA REFERENCE DOSE

     As previously reported on this blog (Posts of January 22 and February 18, 2005), the National Academies of Science report on perchlorate convinced federal EPA to set a drinking-water "reference dose" of 24 ppb; but the report did nothing to quell critics who argue for standards as low as 1 ppb.

     Sen. Diane Feinstein (D-California) has now expressly joined those critics, firing off a letter yesterday (June 8) to EPA Administrator Stephen Johnson stating in part:

In February 2005 the EPA announced that it was adopting the NAS recommended RfD. This value was adopted and placed on the EPA’s Integrated Risk Information System (IRIS) database rather quickly with no further public review.

I am always delighted when a government agency moves quickly, however I have a few questions regarding how the process to establish the reference dose proceeded:

• How did the EPA come to the decision to endorse the NAS-derived RfD?

• How did the EPA determine that this level would protect public health with a reasonable margin of safety?

• Why did the EPA decide not to allow for public comment on this decision?

• Will the EPA be re-evaluating this reference dose in light of the concerns regarding the [NAS] perchlorate study?

     The full text of Sen. Feinstein's letter can be found at the link above.

     Ironically, Sen. Feinstein's implicit criticism of EPA's perchlorate standard would seem to lend credence to the U.S. Chamber of Commerce's dissatisfaction (see Post of yesterday, June 8, 2005) with EPA's methodology in setting regulatory standards.  I say "ironically", because Sen. Feinstein on the one hand is concerned EPA's perchlorate standard is too liberal, while the Chamber on the other hand is concerned EPA's various standards are too strict.  Nonetheless, both the Senator and the Chamber strike a common chord of dissatisfaction with EPA's data analysis methodologies.

AB 492-PERCHLORATE REPORTING-HAS PASSED THE CALIFORNIA ASSEMBLY

  Yesterday, the proposed legislation passed the Assembly on a vote of 57-20.  For who voted how, see this link.   The bill now goes to the State Senate.

SB 187 SEEKS TO PROD OEHHA INTO PROMPT FUTURE REVISIONS OF PERCHLORATE PUBLIC HEALTH GOAL

     On May 28, just before the Memorial Day recess, the California State Senate passed and sent to the Assembly SB 187 (Sen. Nell Soto, D-Ontario).  SB 187 provides:

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 116365.3 is added to the Health and Safety Code, to read:

   116365.3.
The Office of Environmental Health Hazard Assessment shall revise the public health goal for perchlorate in drinking water as soon as possible after new methods for analyzing pathways of exposure become available to the office, or as soon as possible after new findings indicate that the current public health goal may be insufficiently protective of pregnant women, fetuses, infants, or other vulnerable populations.      

     Since the Office of Environmental Health Hazard Assessment ("OEHHA") is, by existing law, already obligated to revise public health goals for any contaminant (including perchlorate) as new information may dictate, it is arguable that SB 187 adds little to the public health-goal conversation.  On the other hand, the bill does specifically direct OEHHA to consider the effect of perchlorate contamination on, among other groups, fetuses (a group not specifically named by statute in OEHHA's above-referenced existing public-health goal determination authority). 

     Although OEHHA under existing law must review the adequacy of public health goals at least once every 5 years, SB 197 is apparently designed to encourage OEHHA to conduct its reviews as to perchlorate with greater urgency (the public health goal for perchlorate is to be revised "as soon as possible" in the circumstances described in the bill).  This statutory encouragement does not appear technically to be necessary, since OEHHA already has the authority to revise the public health goals "as necessary based upon the availability of new scientific data" (see the Legislative Counsel's Digest of the bill).

     However, one infers that the bill's encouragement to OEHHA to do immediate review and revision stems from environmental groups' unhappiness that OEHHA has recently decided to reaffirm the present perchlorate public-health goal of 6 ppb in drinking water.  See my Post of April 5, 2005 in this regard.

    

AB 492 ON PERCHLORATE PASSES ANOTHER HURDLE

     On a straight party-line vote of 13-5, the Assembly Appropriations Committee has passed the proposed legislation and sent it to the Assembly Floor.  On May 26, 2005, the bill was amended to accept the Committee's recommendation (see "Comments", item 4) that the reporting requirements for perchlorate disposal be folded into the "Business Plans" already required under existing legislation.  The amended bill can be found here.

     For previous Posts/this Blog regarding this bill, including some of its profound shortcomings, see the Posts of April 30, April 29, April 14, March 20, March 9, March 5 and February 20, 2005.  The easiest way to access these Posts is by going to the "Categories" menu on the right-hand side of this Blog and clicking on "Perchlorate".

YOUR TAX DOLLARS AT WORK-AB 492-CONTINUED

     Yesterday, I Posted the news that the Assembly Committee on Environmental Safety and Toxic Materials had nearly-unanimously approved AB 492.  I commented that this was curious, since a main goal of AB 492 is to require reports from dry cleaners using perchlorate as to how they dispose of the chemical.  The problem is, dry cleaners don't use the chemical.

     The Committee just ignores this reality. The official Committee analysis of the bill just published on the State Assembly's website states:

" Background on Perchlorate.

          1)Perchlorate is a salt used as an oxidizer in rocket fuel, highway flares, matches, air bag inflators and in other uses such as dry cleaning."  (emphasis added).

      I understand one could, in theory, nevertheless defend AB 492 by arguing that perchlorate is in fact used in a number of  industries other than dry cleaning and that there have been substantial perchlorate disposals into drinking-water and other health-sensitive sources as a result of disposals from such industries (see, e.g., my Post of March 30, 2005-- map of perchlorate disposals).  However, these facts raise more questions than answers regarding the need for, and wisdom of, imposing the additional reporting burdens and accompanying expense that would be required by AB 492, if enacted.  The official Committee analysis does not indicate that any of these questions have been considered.  Some examples of this point:

     1.  Is there any reason to believe perchlorate disposal to drinking-water sources and/or other health-sensistive sources constitutes a contemporary (as opposed to historic) practice?

     Multiple provisions of the Health & Safety Code and the Water Code already prohibit and/or require clean up of any such disposals.  Is there any evidence from existing agency investigation and enforcement data that people continue to ignore these Codes?  Or is the agency investigation and enforcement data rather indicative of problems only with pre-Code, historic disposal practices?  The Committee's analysis ignores these questions.

     2.  Is there any reason to believe that perchlorate contamination constitutes an actual threat to human health?  In this regard, the Committee analysis states:

"Impairment of thyroid function in expectant mothers may impact the fetus and newborn and can effect changes in behavior, delayed development, and decreased learning capability.  Changes in thyroid hormone levels may also result in thyroid gland tumors.  Recent studies have found high levels of perchlorate in human breast milk, dairy milk, and winter lettuce."     (emphases added).

     Even the Committee is thus not sure whether human health is being threatened. Indeed, there are experts (see my Post of March 9, 2005) who contend there is, at least in the Untied States, very little evidence that perchlorate is having the effects about which the Committee worries.  Moreover, while I don't know to what specific "recent studies" the Committee analysis refers, the most prominent recent study of perchlorate contamination in breast milk has resulted in no consensus as to whether or not the contamination poses a health risk(see Post of February 24, 2005).

     I am sensitive to a charge that insisting on actual proof of adverse health effects before taking legislative action is failing to give the benefit of the doubt to protecting human health.  However, as is often the case with charges made in the abstract, such a charge misses the real-world issue. 

     We would, for example, all arguably be safer if the government would put crossing guards at every single crosswalk on major public highways.  Since we don't have the resources to do this, we instead target such guards to help guarantee safety at only those crosswalks where pedestrians are at greatest risk (e.g., children's school crossings).

      The same analysis applies with respect to expending increased public resources regarding perchlorate-- by doing so, are we diverting resources from the investigation of, and enforcement regarding, other chemicals with a much more certain connection to adverse health effects?  The Committee analysis does not appear even to have asked this basic question.

     3.  What is the effect of the increased regulatory burden on California businesses?

     Regarding the fiscal effect of AB 492, should it become law, the Committee analysis says:  " FISCAL EFFECT :   Unknown, but some administrative costs to DTSC associated with collecting the reports and any potential analysis or enforcement."  (emphasis added).

     It's kind of disturbing, don't you think, that the Committee has recommended enacting legislation based at least in part on a faulty factual premise (that dry cleaners use perchlorate), on incomplete risk analyses and on "unknown" regulatory costs.  As if all this weren't disturbing enough, the Committee analysis has completely ignored the potential effect of AB 492, if enacted, on the California economy.

     No estimate is given, or apparently even known, as to the costs to business to comply with AB 492, if enacted.  One may be permitted reasonably to worry that the seemingly smooth track to enactment of such a flawed piece of legislation will be taken by the business community as yet one more signal business addresses should perhaps read "Nevada" rather than "California".

ASSEMBLY COMMITTEE POSTPONES HEARING ON AB 1354 (6 PPB PERCHLORATE MAX CONTAMINANT LEVEL PROPOSAL)

     As reported here on April 15 (see Post of that date), AB 1354 (Baca) was set for an April 26 hearing in the Assembly Committee on Environmental Safety and Toxic Materials.  Didn't happen; the hearing has been postponed with no new date announced.

     I don't know why this delay has occurred. However, as detailed in multiple previous Posts on this Blog, there is considerable controversy over whether the danger level of perchlorate in drinking water is reached at 1 ppb (environmental activists' contention), 6 ppb (California government's suggestion), over 20 ppb (federal EPA's suggestion), over 100 ppb (Pentagon and defense industry's contention) or whether perchorlate is really much of a health problem in the good old USA at all (there is some expert doubt about this).  Perhaps the Committee is as confused as the rest of us (democracy in action!).

     As soon as I hear anything more on the reason for the delay or a scheduled new hearing date, I will tell you about it right here.

AB 492-YOUR TAX DOLLARS AT WORK

     One is bemused. 

     Will Gaston (see "Quality Consultants I Know", right-hand column of this Blog) advised Assembly Member Baca's office that AB 492 was crafted based on a faulty assumption (the bill in substantial measure was drafted to require annual reports from dry cleaners using perchlorate-- which none do; see this Blog's Posts of February 20, March 5, March 9, March 20 and April 14, 2005).  Nonetheless, Assembly Member Baca's office has, without batting a proverbial eye, continued to champion the proposed legislation.

     On April 26, 2005, the proposed legislation passed the Assembly Committee on Environmental Safety and Toxic Materials on a 6-1 vote, with only Assembly Member Audra Strickland (R-Simi Valley, Thousand Oaks and surrounding areas)  voting "Nay". The bill has now been sent to the Committee on Appropriations where, presumably, our elected representatives can figure out how much of your hard-earned tax dollars to spend to set up yet more government paperwork stemming from the factually incorrect notion that the dry-cleaning industry uses perchlorate.

AB1354 ALSO SET FOR APRIL 26 HEARING

Along with AB 492 (see Post of yesterday), AB 1354 (which would set a Maximum Contaminant Level for perchlorate of 6 ppb in drinking water; see Posts of Ferbuary 24 and March 18, 2005) is set for an April 26, 2005 hearing in the Assembly Committee on Environmental Safety and Toxic Materials.