Chromium 6 is a known carcinogen, but the implosion of a blue-ribbon panel of scientists means we still don’t know how much is safe in L.A.’s drinking water.
June 3, 2004
By Chip Jacobs
They were some of California’s top scientists, beautiful minds every one, with stellar résumés and the research grants to prove it. Experts at tracking how industrial poisons assault the body, they had served on national health boards and written thousands of journal articles among them. Within a few years, their cachet would be polluted.
In the spring of 2001, when the national chatter was about hanging chads, these seven toxicologists and epidemiologists were asked by state officials to tackle a medical hot potato: whether chromium 6, the so-called “Erin Brockovich” chemical, caused cancer through drinking water. California’s risk-assessment agency had proposed a Draconian crackdown on chromium 6, based largely on a patchy 1968 German study, and water agencies and industry bristled about regulatory overkill.
It was hardly an academic question. Only a few years earlier, Pacific Gas & Electric (PG&E) had paid a record $333 million for chromium discharges that sickened residents of Hinkley, the San Bernardino desert hamlet where Brockovich crusaded. Lockheed Martin Corp. forked out $60 million itself in a secret 1996 deal with residents around its former Burbank military-aircraft plant. Health problems attributed to chromium 6, known technically as hexavalent chromium, drove that settlement.
Everybody knew the odorless, yellow-green compound can cause lung and sinus-area cancers when inhaled as dust. Direct skin contact can cause tumors. But whether it bred gastrointestinal cancers, leukemia, and other disease through lifetime consumption in water had not been firmly established. Independent brainpower was needed.
Before it could even finish its work, however, the “chromate toxicity review committee” was rocked by controversy, when two panelists – one man a coveted industry consultant, the other the group’s liberal conscience – resigned just before their only public meeting.
The panel’s report was delivered 10 days before the 9/11 terrorist attacks. Experts were unfazed by its mainstream conclusion: no credible research linked chromium 6 with cancer when ingested through water. The U.S. Environmental Protection Agency (EPA) and World Health Organization, among others, had endorsed the same view. The scientists recommended the state hold steady at its existing standard, 50 parts per billion (ppb) for total chromium in water, until a national toxicology study was completed.
The news quickly reverberated where it mattered. In Sacramento, regulators tweaked policies. In Los Angeles Superior Court, PG&E’s lawyers used the findings to bolster their request for summary dismissal in Hinkley follow-up cases.
Yet, six months later, the committee’s pride in a job well done metastasized into confusion, and then range warfare. A lanky Westside lawyer who’d worked on the Brockovich case, among others, sensed something rotten about the blue-ribbon committee’s conduct. Gary Praglin dug in. Over PG&E’s objections, he won what few had: judicial permission to depose members of a scientific advisory board, folks associated with it, and subpoena documents, too.
Praglin’s allegations, bound up in a phonebook-sized legal brief, were at once fateful and disturbing. They ignited two State Senate hearings, and a decision by Gov. Davis’s top environmental official to officially trash the entire report. In doing so, California’s bid to have a chromium 6 standard done by January 2004, as required by law, has been shoved back several years. A legally mandated study of contaminated San Fernando Valley groundwater was waylaid as well; it’s now two-and-a-half years delinquent. Then there were the dinged reputations of the scientists themselves.
Indeed, Praglin’s charges seemed more like the dirty laundry from a Big Tobacco trial than a humdrum chemical review. He claimed that PG&E had “dominated the blue ribbon panel” by embedding one former and one current consultant on the panel, and then choreographed sympathetic experts to present evidence. A trade association with inside information about the group’s proceedings, he alleged, was a sham. Tales of clumsy plagiarism, leaked e-mails, fixed conclusions, and a ghostwritten Chinese study with reversed chromium-cancer results rounded out his findings. In short, he concluded the panel was rigged.
“What we have here,” Praglin said recently, “is the tip of the iceberg. It was definitely undue influence. PG&E’s lawyers knew that the company’s consultants were involved with the blue ribbon panel and thought they could sneak it by the judge.”
PG&E denounced these claims as “baseless accusations.” It swore to zero involvement with the committee’s workings. Two days before the first Senate hearing, at which PG&E did not speak, its lawyers at Latham & Watkins filed an exhaustive rebuttal of every scandalous assertion. The San Francisco-based utility refused comment for this story.
Panel member Dennis Paustenbach, an Oakland toxicologist considered by activists to be overtly “industry-friendly,” was the central figure in Praglin’s conspiracy theory. Praglin accused him of concealing both his ties to PG&E and his efforts before and after he resigned from the committee to influence policymakers. Paustenbach, whose media consultant crowned him the “Hank Aaron of his field,” has authored 200 peer-reviewed studies, taught at several universities, and once drank chromium-laced water amid public hysteria about it.
He has been caught up in other environmental dust-ups, including his 2001 role on an EPA advisory panel examining dioxin, but nothing that brought on these kinds of fireworks.
At turns angry and defiant, Paustenbach believes he was the victim of a witch-hunt by aggressive plaintiff attorneys out to make “a billion dollars” in trial awards. Paustenbach said Praglin’s computer-video presentation at the Senate hearings was a cut-and-paste hatchet job of his deposition. He accurately noted that he’d informed the panel’s chair of his work for PG&E, which included research and testimony during the Hinkley trial, but stressed he could be objective nonetheless.
Praglin, who works with powerhouse Los Angeles tort lawyer Thomas Girardi and Brockovich-boss Edward Masry, doesn’t buy it. Paustenbach, he said, provided insufficient disclosure considering the $8.6 million he earned for his employers in chromium-related work during his career, including once sitting in a chromium-filled Jacuzzi.
“So what?” demands Paustenbach.
“I was made into a bogeyman,” he said. “What did Praglin risk when he put my family, my career, my income, my home on the line? … PG&E never, ever contacted me with respect to the panel. I received one phone call from them in the five years after the Brockovich case. If there was lobbying, I wasn’t aware of it.”
Officials with the University of California Board of Regents, who had convened the blue ribbon panel under a contract with the state’s Office of Environmental Health Hazard Assessment (OEHHA), were also angered by the Senate hearings. In a movies-come-to-life moment, Brockovich opened the hearings with fiery speech about corporate skullduggery. Deborah Ortiz (D-Sacramento), who chairs the Senate’s Health and Human Services Committee, oversaw the proceedings.
Because of the outcry, the university system revamped its policies to require science advisory panel members to complete written conflict-of-interest disclosure forms based on those used by the National Academy of Science.
“Mr. Praglin took quotes of contest, flashed them up on a screen, and it was so misleading I was actually embarrassed for him,” said Eric Behrens, a counsel for the university regents. Behrens was particularly galled by how panel member Marc Schenker, a UC Davis department chair and doctor, was ripped by Praglin for having a box of PG&E litigation material in his office during the time he was on the panel. Schenker had testified his work with the utility was over by then, and whatever money PG&E had paid went into the university’s pocket, not his.
“This was not a bunch of industry flacks on the panel,” Behrens added. “One of the interesting things about this situation is that it’s not David versus Goliath. It’s two Goliaths, with PG&E on one side and the plaintiff lawyers pursuing them on the other. The university [system] was caught in the middle.”
~ Water Sports ~
So were people in Southern California.
A study by the official in charge of the Upper Los Angeles River, Mel Blevins, concluded that concentrated groundwater plumes of chromium 6 are moving swiftly toward production wells operated by the cities of Burbank, Glendale, and Los Angeles, as CityBeat reported in April. Eventually, hundreds of thousands of people may be affected as these wells are closed, and expensive imported water will have to be purchased. Blevins calls the threat, which includes a series of industrial chrome 6 hot spots registering as high as 1 million ppb, a “clear and present danger.” Officials at the Los Angeles Department of Water and Power disagree. Cities have kept water below state standards so far by blending contaminated water with purer sources.
Medically, some believe the stomach’s natural acids render most of the chemical benign; ´´ other experts say it shouldn’t be in public water at all because of its ability to enter the bloodstream and penetrate organs and tissues. Its prevalence in local aquifers traces to the region’s manufacturing legacy: chrome 6 has long been utilized in chrome plating, leather tanning, welding, as a paint pigment, and as an anti-corrosive.
While Praglin’s charges still rankle many, his investigation did spill sunlight on the recurring cast of players who lobby state scientists on any variety of chemical matters, usually for clients who don’t want their fingerprints noticed. The standards adopted by the OEHHA can move millions of dollars from one side of a ledger sheet to the other, so there was good reason that PG&E and others would make a full-court press to oppose any reduction in the chromium 6 water threshold.
Maybe the two most fascinating players in the saga are a young, wired-in scientist named Deborah Proctor and the executive director of a trade group named John Gaston.
Proctor is a Senior Managing Scientist at Exponent Inc., a Menlo Park-based engineering- and science-consulting firm traded on the NASDAQ. Paustenbach worked there when he was on the panel. PG&E, Ford, Dow Chemical, Merck & Co., and General Motors – as well as the law firms representing Lockheed and PG&E – are listed as clients on Exponent’s website.
In March, Proctor petitioned the state’s Air Resources Board and OEHHA to consider relaxing airborne standards for chromium 6 based on freshly published studies. Her request directly ties into water regulation, because state officials may calculate people’s exposure to chromium 6 through steam inhalation during showering.
Proctor, who records indicate was deeply involved with the blue ribbon panel, has not responded to attempts to reach her.
“The e-mails show that Deborah Proctor leaked confidential information for PG&E’s financial gain,” Praglin said. “And Paustenbach is the likely source of her information.”
Paustenbach responded he never disclosed anything of consequence.
If Proctor’s role is still somewhat mysterious, John Gaston’s is less so. Gaston is a vice president and senior consultant at CH2M Hill, a multinational engineering, construction, and technical firm with a long history in Los Angeles monitoring federally subsidized projects from Metro Rail to Superfund cleanups. During the blue ribbon panel’s deliberations, however, Gaston wore a different hat: as executive director for “the Alliance for Responsible Water Policy.” In his deposition for Praglin, Gaston acknowledged that the alliance is run out of the Sacramento office of a lobbyist named Eric Newman, and lacks any board of directors or palpable infrastructure.
To Praglin, the alliance is an industry front.
On April 6, 2001, just five days after OEHHA recommended formation of an advisory board, records show the alliance had a strategic plan ready to roll in defense of members like Honeywell and PG&E. (The utility disputes it was a member then.) Newman and Gaston urged a campaign to sway lawmakers, reporters, and regulators at OEHHA and the California Department of Health Services. They identified “experts” who felt the chemical was an overblown peril ginned-up by the media and the movie. They also proposed direct involvement in the blue-ribbon panel. “Participate in state panel’s review of chromium 6,” their plans said. “Influence selection of panelists … .”
Newman declined comment. In his deposition, he conceded that PG&E and its lawyers paid his lobbying firm $90,000 over a 14-month period to bird-dog chromium regulation.
Gaston’s employer, CH2M Hill, has been awarded roughly $3.7 million in contracts from the EPA to provide technical assistance on the Valley’s groundwater-contamination problems, most of that in recent years, federal records show. The company’s focus was to advise on filtering solvents from the water. Even so, CH2M Hill did co-sponsor a symposium on the Valley’s chrome 6 pollution in January 2001. About two years earlier, the firm performed a geo-chemical analysis of the same issue.
Asked if he felt there was a conflict between his alliance work combating the proposed chrome 6 water standards and his company’s efforts advising on chrome 6, Gaston said no because he does not work on L.A.-area contracts. “My bosses know. It’s not a dirty little secret,” he said. “Besides, I never lobbied anybody on the panel,” though he admitted doing that in the legislature.
Gaston was invited to speak at the state Senate hearings, only to decide against it after seeing Praglin’s Power-Point video. “Praglin flamed me and a bunch of others as industry whores, and by the end I saw no benefit in talking about how we wanted science to prevail,” he said. “I was deposed by Praglin for countless hours. He showed portions of it at the hearing. It was not a pretty sight.”
Gaston, himself a former state health official, said the alliance was needed as a “firewall” between trial lawyers and regulators. He compared the alliance to a volunteer fire department, only activated when needed. The alliance and Gaston are currently involved with state’s efforts to regulate perchlorate, a rocket-fuel booster that has contaminated former-industrial zones from Azusa to Pasadena to the Santa Susana Pass.
“When scientists and the Department of Health Services say the standard is X, we all stand up and support X,” Gaston said. “It should come from fuzzy-haired people with ‘ologist’ after their name. But in the last 10 or more years, it’s become much more litigious, much more acrimonious. There is a lot of money to be made out there.”
Gaston is right about that. Praglin and company are representing 900 people in the cities of Hinkley, Topock, and Kettleman with chromium health claims against PG&E. Damages in the case, which has dragged out for eight years, could be in the hundreds of millions.
Praglin wasn’t fazed by Gaston’s broadside, or murmuring by critics that he was in an “unholy alliance” with attention-loving politicians and left-wing activists. “Industry is taking somebody with water credentials and putting his face on the puppet,” he said.
Brockovich said those strings are obvious. She said she coaxed Praglin, Ortiz, and others to scrutinize the panel, not vice versa. Praglin added it was a “cold call” from Ortiz that led to the hearings. Ortiz verified that.
“It’s frightening to see what lengths companies will go to conceal information from the general public,” Brockovich told CityBeat. “That panel was so corrupt it was laughable.”
~ Dead Mice ~
The mess did not begin with the Oscar-winning Erin Brockovich, which was released in March 2000. It began in February 1999, when OEHHA proposed a 2.5 ppb limit on total chromium in drinking water. OEHHA’s job was to advocate for a limit overly protective of public health. The final say would come when the Department of Health Services takes that number, factors in economics and feasibility, and establishes what is called a maximum contaminant level.
Paustenbach, records show, certainly had his say. Six months before joining the blue-ribbon panel, he met with OEHHA officials about this issue. In a follow-up letter in December 1990, he asked the agency to “reconsider its current position regarding the oral carcinogenicity of chrome 6 based on the weight of evidence.”
OEHHA conceded much of their thinking was based on a German study known as “Borneff.” In that experiment, hundreds of mice were fed extremely high does of chrome 6-laced water. A good number of the animals developed stomach tumors, but a virus that hit the colony might have been responsible, thus muddying the results.
Blue ribbon panel members were especially critical of the state’s reliance on this study. “Except for OEHHA, other regulatory agencies attempting to analyze the risk of ingested chrome 6 have deemed this study not suitable,” their report stated.
The media got into the act in August 2000, when the Los Angeles Times published the first in a barrage of stories about the widespread presence of chrome 6 in the Valley’s groundwater. In response to those stories and public fears, Gov. Gray Davis signed legislation by then-State Sen. Adam Schiff for the state’s health department to assess the magnitude of the Valley’s chromium pollution. Roughly one year later, Davis signed a bill by Ortiz to speed up enactment of the chrome 6 contaminant level by January 1 of this year.
Driven by the panel brouhaha, however, neither of those deadlines has been met. Some have suspected the Valley report, which has been kept in a draft mode that makes it exempt from public inspection, was squelched by lobbying efforts.
But David Spath, chief of the state health department’s drinking water and environmental services, insisted that was wrong. He said he has privately told officials the data indicates there is no danger to Valley residents.
“There is no political intrigue behind this,” said Spath. “It may be we will just release [the assessment study]. To be honest, it’s sort of an embarrassment to have a report referencing a blue ribbon report that has been disavowed by Cal-EPA.”
OEHHA Director Joan Denton said the agency realized it’d take heat for leaning on the Borneff study, which is why she agreed to the formation of the blue-ribbon panel. The abandonment of its report means a final public health goal is still some ways off.
“We did take the blue ribbon report” seriously, Denton said. “They did bring some ´´ information we didn’t know about before. In the end, [as the Senate hearings ripped into the panel’s actions], we were in bystander mode. It was a very visible series of events.”
~ Do Not Eat ~
UC Davis medical professor Jerold Last was selected as the chair of the blue ribbon group, largely because of his earlier stewardship of the panel reviewing the gasoline additive MTBE. Cherry-picking scientists from a list supplied by the state and his own academic contacts, Last chose seven top-drawer scientists. One of them was John Froines, an acclaimed UCLA professor and former “Chicago Seven” member known for his toxic studies. Paustenbach was a second choice after another scientist declined.
Contacted by CityBeat, Last said there was no undue influence on the panel, and that none of the posturing around the panel affected its conclusions. Froines, he complained, was “leaking everything to OEHHA as fast as Paustenbach was leaking” to others. Mostly, Last said, he is steamed at Praglin and Ortiz. Since their hearings, he has decided against serving on future science panels. Some colleagues have stopped volunteering as well.
“It was a purely political process best exemplified by the statement by Sen. Ortiz, who said we are going to totally ignore the conclusions of the science and focus on the process,” Last said. “If you can’t attack the science, you end up attacking the people. Based on my experience, would you feel a great deal of trust for the political system?”
Ortiz said the feeling was mutual. She explained that, according to Last’s own e-mails, some material in the blue-ribbon panel report was torn almost verbatim from a Merck-funded journal article Paustenbach and Proctor penned. The article examined cancer links at chrome pollution sites in central Mexico, Scotland, and Japan.
“If [Last] felt slighted by my 11th-hour hearing, then that’s unfortunate,” Ortiz said. “We are all very grateful he won’t serve on future panels. He violated his obligation to be fair and objective. Am I supposed to ignore a process that appears to be rigged?”
Froines declined comment, citing his ongoing chairmanship of the state review board for toxic air contaminants. In his Senate testimony, though, Froines expressed concerns about the panel’s short time frame and its “limited” perusal of relevant literature. Of the 200 chemicals the state has reviewed, he said, chromium 6 is only second in cancer-causing potency to dioxin.
“Chromium, forgetting whether you breathe it, drink it eat it … is a carcinogen,” he testified. “That’s where you start from.”
~ War of the E-mails ~
Read all the documents and one thing stands out: thrashing over a chrome 6 standard became a sort of shadow courtroom where the real sequel to Erin Brockovich was produced.
Consider April 19, 2001, five days before Last gave panel members their workload, when the e-mails flew.
Exponent’s Proctor, who somehow had the skinny on the panel’s schedule, e-mailed Paustenbach saying none of the companies “want the spotlight” to state their opinions about the proposed chrome 6 standard. Later that day, Paustenbach responded to her, inviting “clients” to send studies he could share with the rest of the panel.
Frictions surfaced soon after. On April 25, Froines e-mailed George Alexeff, OEHHA’s deputy director, that the panel was “biased,” that Paustenbach’s conflict of interest had gone unquestioned, and that he was bolting. Last talked him out of it.
Proctor hustled, too. In mid-May, she e-mailed PG&E’s attorneys at the downtown Los Angeles office at Latham & Watkins. “Because it is important that the expert panel get the best information,” she wrote, “with your approval I have approached [University of Alabama scientist] Phil Cole about having Lockheed or the Alliance for Responsible Drinking Water fund him and present to the panel. Phil is most comfortable with having PG&E fund completion … I am trying to work through Dennis to get the panel to invite Phil.”
Praglin later subpoenaed records showing that Cole received a check for roughly $6,500 from the alliance. Praglin also secured a ledger indicating Lockheed paid about $15,000 to have Norwegian scientist Sverre Langard travel from Oslo to Davis to attend the panel’s public meeting.
Lockheed relocated from Burbank to Georgia in the early 1990s. Even before it moved, it was under federal and state groundwater and soil cleanup orders, and has built and operated extensive plants to remove solvents. Company spokesperson Gail Rymer said in response to CityBeat inquiries that the aerospace conglomerate is not “currently involved in tort litigation regarding chromium.” Lockheed, she added, has spent in excess of $220 million on its local cleanup. Rymer acknowledged the federal government has reimbursed the company for approximately $110 million of that because of the Pentagon’s control of Lockheed’s “Air Force Plant 14” from 1947 to 1973 – one of the first times a dollar figure has been specified.
Was Lockheed involved with the alliance’s efforts to sway the blue ribbon panel? Without directly answering, Rymer said the company reserved the right to “bring good science into the debate” through an industry organization or independently.
By July 2001, the panel was splintering. Froines, whom Proctor called “so full of it,” finally quit. In doing so, he expressed his “serious concerns” about the committee’s functioning, but nothing directly about Paustenbach.
Nonetheless, the panel was smeared. That same month, Last received letters from two small environmental groups warning that Paustenbach had thick industry ties that should knock him off the panel. Joe Lyou of the California League of Conservation Voters Education Fund, referencing Paustenbach’s work for Rockwell, PG&E, Louisiana Pacific, and others, worried – prophetically as it turned out – the conflicts would “taint the conclusions” of the panel.
Anticipating the storm, Paustenbach resigned on July 26, before the rest of the panel voted to use him as a contributor, not a member. Paustenbach today said he regrets departing, and wonders how the activists learned so much.
“Why a week before the public hearing did these letters come in?” he asks. “At that moment, I should have said something is wrong here. That panel was a very pure panel … . There’s no doubt I wanted to share my scientific views after the Brockovich movie. You had the whole world thinking that if you ingest chrome 6, you get cancer.”
Copyright Chip Jacobs