California moves to regulate ‘Erin Brockovich chemical,’ but she says it’s not enough

Three decades after Erin Brockovich discovered that hexavalent chromium was sickening residents of a small Mojave Desert community, California’s State Water Board has proposed a long-awaited regulatory standard that would limit the toxin’s presence in drinking water.

But according to Brockovich, the proposed regulation is insufficient — and amounts to no more than “lip service” and “politics.”

“I’m frustrated that nothing’s changed in 30 years.” Brockovich told The Hill. “But I again am not surprised. From the moment I began this 30 years ago, it was dodge, hide, conceal and never about the health and welfare of people, of animals, livestock or the land — but of your coveted money and making sure somebody didn’t get sued.”

The proposal, issued by the board on Monday, would set a maximum contaminant level (MCL) of 10 micrograms — or 10 parts per billion — of hexavalent chromium per liter of drinking water. The MCL is expected to take effect in 2024, if adopted by the board following an extended public comment period.

Hexavalent chromium — known more commonly as chromium-6 or “the Erin Brockovich chemical” — gained international notoriety in the 1990s, after Brockovich discovered that it was contaminating drinking water and making people sick in the San Bernardino County town of Hinkley, Calif.

While working in Hinkley as a legal aid for Ed Masry, she came across medical records that led her to discover the contamination, which was coming from a Pacific Gas and Electric Company natural gas compressor in the community. Ultimately, PG&E settled with residents for $333 million, but the state of California has yet to regulate the chemical’s presence in drinking water.

“California is making an effort to create an MCL for hexavalent chromium in drinking water, where no other states are willing to do that, let alone the federal government,” Brockovich said, noting, however, that the MCL is nowhere near the state’s own public health goal.

The California Water Board acknowledged this discrepancy in its own proposal on Monday, explaining that the cancer risk associated with a 10 parts per billion threshold “is 500 times greater” than the level set in state targets.

The public health goal, set in 2011 by California’s Office of Environmental Health Hazard Assessment, indicated that chromium-6 levels should be below 0.02 parts per billion — an exposure level that represents a “one in one million” lifetime cancer risk level. Such a level, the agency stated at the time, is accepted by physicians and scientists as a “negligible risk” standard.

“You set an MCL, you set it far enough away from a public health goal — what was your purpose?” Brockovich asked. “I thought that when we set this, it was to be protective of public health and welfare.”

The board’s proposal on Monday confirmed that the MCL must avoid “any significant risk to public health” — which for chromium-6 includes “cancer and kidney toxicity” — and stay as close to the public health goal as “technologically and economically feasible.” With the proposed MCL, one out of 2,000 individuals exposed to drinking water at 10 parts per billion for 70 years could develop cancer, according to the report.

But the Water Board nonetheless characterized the proposal as “a major milestone” in a news release accompanying the report. 

Since 1977, chromium-6 has only been regulated within a broader MCL for total chromium — which includes both the toxic chromium-6 and the beneficial chromium-3, an important nutrient for human health.

While the Environmental Protection Agency loosened the federal MCL for total chromium from 50 micrograms per liter to 100 micrograms per liter in 1991, California maintained the stricter standard, according to the Water Board.

This isn’t the first time that California has tried to set a specific MCL for chromium-6. In 2013, the state’s Department of Public Health proposed the same 10 parts per billion MCL, which ended up going into effect in July 2014. But the Superior Court of Sacramento struck down the MCL’s validity less than three years later due to technical and economic feasibility issues.

“We restarted the MCL analysis process from scratch, using updated data, and conducted a rigorous economic feasibility analysis, paying special attention to the range of possible impacts on water systems,” Darrin Polhemus, deputy director of the State Water Board’s Division of Drinking Water, said in a statement.

Now, the State Water Board is trying to implement that same MCL yet again. The total costs — covering monitoring and water treatment — are projected to be about $157 million annually for community water systems and $5.5 million for nontransient non-community water systems, according to the report.

“Ultimately, a standard is a balancing of risks to public health and what is achievable for systems to implement successfully,” Polhemus added. “The MCL for hexavalent chromium we are proposing — 10 parts per billion (ppb) — is a level that improves public health while providing water systems with a reasonable target and timeline to come into compliance.”

If the proposal goes on to become regulation, systems with more than 10,000 service connections would be required to comply with the MCL within two years of the rule’s adoption, while systems with 1,000 to 10,000 connections would have three years and those with fewer than 1,000 such connections would have four years. 

In addition to suggesting an MCL, the proposal also calls for an “associated detection limit for purposes of report” of 0.05 micrograms per liter — the threshold at which systems must report chromium-6 findings to the State Water Board.

But both Brockovich and other California environmentalists argued that this MCL would be inadequate to protecting human health.

“We applaud the state for finally moving forward with regulation of chromium-6 in water, but this MCL is still not sufficiently protective of Californians’ health,” Bill Allayaud, California director of government affairs for the Environmental Working Group, said in a statement.

“We urge the state to do better and take immediate steps to adopt a level that more closely reflects the state’s public health goal,” he added.

Just last month, the Environmental Working Group updated an interactive map showing that chromium-6 is found in the tap water of 251 million people across the U.S., surpassing levels that scientists have deemed safe.

On that map are 918 new detections of the toxin in California that did not appear on a previous rendition of the map in 2016, according to the group.

Brockovich said she believes that the lack of change stems from the influence chemical companies have on politicians and government agencies, which could be setting this MCL with the idea that they will “kick the can down the road.”

“They’re just going to hope that it goes away,” she continued. “Come on, California. You’re going to lead the way on an MCL. Well, let’s really get down to the brass tacks here of who you’re protecting.”

But the very notion that the state is concerned about the presence of chromium-6 in its drinking water indicates the problematic nature of the chemical, according to Brockovich, who argued that officials are simply “afraid to set a meaningful standard that protects the people.”

While Brockovich stressed her disappointment and frustration with the proposed MCL of 10 parts per billion, she said that she won’t let this low bar stop her from further activism.

“OK, California, you’re the first to do it, and everybody else may follow and set it at 10,” she said. “I assure you, there’s a whole lot of places that way exceed that. So I’m going to be watching closely.”