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Clearing The Waters

New charges point out dearth of prosecutions in chromium 6 cases of contaminated groundwater

November 18, 2004

By Chip Jacobs

When charges were recently filed against a Los Angeles plating company for allegedly tainting the groundwater with chromium 6, it seemed to be the latest action on a hot-button issue that Erin Brockovich first crusaded against in the mid-1990s. In reality, however, the case is one of the rare instances where prosecutors have sought justice from industry for what is a growing menace to local water supplies.

While officials have known since the mid-’90s that the aquifer beneath manufacturing sections of Burbank, Glendale, and northwestern Los Angeles is riddled with hexavalent chromium, otherwise known as chromium 6, indictments against polluters have been virtually nonexistent.

Regulators admitted as much during a September 22 press conference to announce criminal charges against Excello Plating Inc. for reputedly disposing the virulent substance illegally and ignoring cleanup orders.

“We want to send a message that these regulations have teeth,” Fran Diamond, chief of California’s Regional Water Quality Control Board, told reporters. “We can no longer allow polluters to think if we issue orders they don’t need to comply.”

Why company executives would think that is not hard to fathom. Pinpointing who dumped what and how can be a forensic goose chase. Much of the contamination traces back to the Cold War, an age before chromium’s lethality was understood. Sites also change ownership, firms move away, and the large ones that remain often have attorneys able to stiff-arm government investigators.

Add a federal Superfund cleanup regimen fixated in that same area on removing industrial solvents – not chromium 6 – and it makes for a lot of wiggle room, not subpoenas.

“It’s horrible [more companies] aren’t prosecuted,” said Gary Praglin, a West Los Angeles-based attorney involved in a number of chromium 6 tort cases, including the one Brockovich worked on in the small Inland Empire city of Hinkley. “Typically, these releases have occurred long ago, and the polluter waits to be found out, rather than come out, so it’s rare you find the management involved.”

Diamond and L.A. City Attorney Rocky Delgadillo, whose department filed the charges against Excello on referral from the state water board, promised to haul chromium 6 polluters to court. From a review of filings by state and local authorities, Excello was the first. In recent weeks, Delgadillo also filed a lawsuit against the U.S. Department of Energy for its inadequate cleanup plans for Rocketdyne in a flurry of environmental action by his office.

Chromium 6 is a heavy metal once used extensively in paints, leatherworks, chrome plating, and cooling towers. Groundwater plumes of the yellow-green liquid are migrating on a southerly bearing, beneath the flanks of the Golden State Freeway, under the three cities. All rely in varying degrees on aquifer-tapped water to serve their populace.

In some hotspots there, the water has registered over a hundred times higher for the contaminant than the state’s now-withdrawn health standard. The cities have either blended chrome-tainted water with purer sources to keep it below existing limits, or closed wells because there is no off-the-shelf treatment yet.

The real crisis may be ahead. If the dirtiest plumes encircle the production wells within a few years, as some predict, city officials may be forced to mothball the aquifer and buy more expensive imported water from the Metropolitan Water District. Doing that could stick them with a $500-million-plus tab, to say nothing of the health concerns it would raise.

Water and air containing industrial doses of chromium 6 is suspected to be the culprit behind serious illnesses, including cancer, clustered in four Southern and Central California communities. In the mid 1990s, Lockheed Martin Corp. and Pacific Gas & Electric paid close to $400 million in tort settlements in Burbank and Hinkley, respectively, though neither faced criminal indictments for their chromium discharges.

Mel Blevins, the court-appointed steward of the Los Angeles River for 20 years, said the federal Environmental Protection Agency should lead the charge hunting down the guilty. The EPA, after all, oversees the solvent-filtration plans and is considered at the top of the regulatory heap.

Excello, which was accused of violating the federal Clean Water Act, among other alleged crimes, faces penalties that can reach $50,000 or more per day. Company executives did not return phone calls.

“It’s my strong belief that the EPA should be doing the main prosecution” in the Valley, said Blevins, who is now a consultant. “Their plants are going to be overwhelmed with water too contaminated to treat. But the EPA’s view is that there is nothing for them to do until the contamination exceeds 50 parts per billion” for total chromium (the current state limit). “I don’t think that’s wise.”

Added Glendale water chief, Peter Kavounas: “The ultimate solution will be for the EPA to start a Superfund for chromium in the three cities. The [state] water board just doesn’t have the clout that the Justice Department has. What keeps me up at night is that we need to start the cleanup. I wish we could move 10 times faster.”

An EPA spokesman said the agency aided the water board with its case against Excello and is searching for other responsible parties. But amending the consent decree among polluters and cities to include chromium would take significant time given the legal and technical complexities.

“Beyond that, we cannot comment, as that would be an enforcement matter,” said spokesman Francisco Arcaute.

The once go-to chemical is an established carcinogen when inhaled. There is no definitive scientific consensus about its cancer-causing abilities when ingested through water, despite anecdotal evidence it can be deadly. A national toxicology study is underway.

It’s been almost as toxic for those trying to regulate it.

A legally required assessment of chromium 6 contamination in Valley water has never been released, partly because a discredited scientific panel contributed to the findings, as reported in CityBeat. Saddled by uncertainty, California scientists will be years late in setting limits for it in tap water. Several state engineers, meanwhile, have voiced concerns that wells sunk in the Superfund effort to remove unrelated solvents from the same aquifer might have inadvertently drawn chromium 6 into filtration plants impotent to remove it.

The Los Angeles-area branch of the water board could certainly use more firepower on the chromium beat. It spent four years reviewing 4,000 Valley sites for potential chromium discharges and has whittled its list to about 85 warranting further assessment. To finish the job with an under-manned crew, the water board is using two private sector technicians funded by the three cities and the EPA. Want a CD detailing the board’s chromium investigation? Write a check for $100.

The board has issued cleanup and abatement orders to seven companies in addition to Excello. They include Lockheed Martin Corp., ITT, Allied Signal, and Drilube, and are all in compliance.

“We have adequate resources to manage the cases we’ve identified,” said David Bacharowski, the board’s assistant executive officer for the Los Angeles region. “If we had more, fine, but … we have a good technical staff, good lawyers, and we can hold our own.”

The water board tries to work with companies to remove its waste before turning to enforcement, since criminal prosecutions can drag on for years. The California Department of Toxic Substances Control, which is currently involved with 11 Southland chromium sites stretching from Long Beach to the Colorado River, follows the same tact.
“It’s like a pain in your chest, and you’re rushed to the ER,” said department spokesman Ron Baker. “Do you want the surgeon to automatically cut open your chest, or have somebody do the X-rays first?”

Copyright Chip Jacobs

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