Hexavalent Chromium: New Developments

On December 20, 2010, the Environmental Working Group (“EWG,” an environmental group partially funded by trial lawyers) released a report claiming that hexavalent chromium was found in 31 of 35 U.S. drinking water supplies tested, with 25 having concentrations that exceed the original proposed state of California screening level of 0.06 ppb. Within 72 hours of the release of the EWG report, EPA’s Administrator, Lisa Jackson, announced that EPA (with state and local officials) will “better determine how wide-spread and prevalent this contaminant is” and pledged to work quickly to determine if new standards need to be set (available here). EPA’s Administrator also stated that “it is likely that EPA will tighten drinking water standards to address the health risks posed by” hexavalent chromium. The EWG and other environmental groups will continue to advocate to EPA and the states that much more stringent regulations be imposed on hexavalent chromium.

Although both authorities currently are reviewing hexavalent chromium toxicity risks, EPA is unlikely to be able to issue a final drinking water standard more quickly than a few years from now (because EPA’s updated risk assessment has not been peer reviewed yet and a proposed drinking water standard will need to be developed and subject to public comment). It is premature to predict the precise cancer potency that EPA might select, no less the hexavalent chromium concentrations that EPA and/or California might select for new regulatory standards. The fact that at the end of December California revised its draft Public Health Goal for hexavalent chromium in drinking water to 0.02 ppb (a factor of three times lower than the level cited by the EWG (a factor of 5,000 lower than the total chromium drinking water standard of 100 ppb) suggests that EPA and California are likely to issue a final hexavalent chromium drinking water standard much lower than the existing total chromium standard. Once EPA determines new toxicity values – a development expected during the coming year — there will be significant pressure to lower immediately site-specific hexavalent chromium cleanup levels in surface water, groundwater, and soil (including at sites where remedies have already been implemented, but residual levels of hexavalent chromium remain). The impact on soil cleanups may be particularly acute in New Jersey, which has a number of hexavalent chromium sites, but hexavalent chromium is present in soil throughout the U.S. The decision on groundwater and soil cleanup levels will be complicated because hexavalent chromium (a trace element in the soil in many areas) is likely to be found in a large number of locations at low levels in soil and water supplies at trace levels. Furthermore, EWG and other environmental groups are likely to demand that product sustainability regulatory programs (such as the proposed California Safer Consumer Products Alternative regulations) be used to substitute a “less toxic” substance in products containing hexavalent chromium since hexavalent chromium occurs naturally and may be present at trace levels in common industrial minerals used in manufacturing some products. Therefore, companies may want to monitor developments relating to hexavalent chromium carefully.

William J. Walsh, Esq.

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