Rock Law

| Published on April 1, 2011

The Hex Chrom HEX

It’s in the news and top-of-mind in many regulatory agencies, so assess your risks related to hexavalent chromium.

by John McGahren, Mark Savit, and Ora Sheinson

Hexavalent chromium (hex chrom) is in the news and on the front line for regulatory agencies and plaintiff lawyers. The Occupational Safety and Health Administration (OSHA) regulated hex chrom (or hex chrome as it is also sometimes called) in 2006 and is enforcing its new rules with citations being issued around the country for items such as testing and monitoring failures and hazard communication failures. Even for cement, which OSHA exempted from the hex chrom exposure regulation, the Deputy Assistant Secretary for OSHA stated:

“OSHA has stepped up its inspections of workplaces where portland cement is manufactured and where portland cement is used on construction sites. The goal of our enforcement emphasis is to ensure that employers train their workers about hex chrome hazards. We also want to be sure that manufacturers include on their material safety data sheets for portland cement the presence of any trace contaminants of hex chrome and their associated hazards, such as allergic contact dermatitis.”

Unions and other groups continue to lobby for stricter workplace regulations. At the same time, while the Environmental Protection Agency (EPA) does not currently have a drinking water standard specific to hexavalent chromium, on Jan. 11, 2011, the EPA issued guidelines requiring public utilities to monitor and sample drinking water for hex chrom. Drinking water standards for hex chrom are under consideration in California and may soon be considered by the EPA. Perhaps most telling, ligation regarding hex chrom exposures from cement plants has been on the rise in California, and cement companies in other parts of the country have been addressing an increase in community concerns regarding potential exposures.

Hex chrom is present in the environment both from naturally occurring sources and as the byproduct of numerous industry activities — including trace amounts that are naturally occurring in portland cement. Also referred to as chromium 6, or Cr(VI), hex chrom exposure is most commonly linked to a rare dermal allergic reaction after repeated exposures. In September 2010, the EPA (through IRIS, its program for evaluating potential risks to human health from chemicals in the environment) proposed new numbers for potential cancer risks from hex chrom. However, the potential cancer risks discussed by the EPA relate to significantly higher hex chrom exposures than the trace amounts found in portland cement, that OSHA found do not require additional worker protections.

Yet, unions have mounted a significant campaign to remove this exclusion. Following a 2007 settlement with a number of unions, OSHA agreed to evaluate exposures to hexavalent chromium during construction site assessments. On June 15, 2010, also as the result of a union lawsuit, OSHA issued a directive that required worker notification for all hex chrom exposures, even those below the permissible exposure limit (PEL). This directive imposes new requirements for workplaces currently exempt from the hex chrom PEL. In addition, OSHA reportedly is reviewing the hex chrom limit and considering lowering the standard from 3.5 µg/m3 to 0.02 µg/m3.

While the EPA does not currently specifically regulate hexavalent chromium in the water, California has proposed a public health goal (not a regulatory limit) of 0.02 parts per billion (ppb) for hex chrom in drinking water. The EPA drinking water standards currently impose a limit of 100 ppb of total chromium, with no requirement to specifically test for specific types of chromium. In December 2010, the Environmental Working Group released a report indicating that 31 out of 35 U.S. cities tested had hexavalent chromium in the water in amounts that greatly exceeded the proposed California public health goal. None of the cities were in violation of the current EPA drinking water requirements. After the report came out, the EPA issued its guidance regarding testing drinking water, and EPA Administrator Lisa Jackson met with a group of Senators who raised the issue of evaluating potential drinking water standards.

Litigation and community concern regarding potential exposures to hexavalent chromium from cement plant operations has been building up over the last several years. In 2008, for example, California’s South Coast Air Quality Management District sued a cement company in Riverside, demanding cleanup costs for alleged soil and groundwater contamination from hex chrom. The company settled with the state for $1 million; however, personal injury and property damage class action lawsuits followed rapidly and are still pending in state court.

Also in 2008, a cement plant in Davenport, Calif., faced community challenges and Erin Brockovich’s attentions over allegations that cement dust containing hexavalent chromium was contaminating the town. After an investigation, in January 2009, the Santa Cruz County Health Agency alleged that a cement plant was the source of the hex chrom in the community. In that same report, however, the county concluded that the levels of hex chrom in the air and dust were all below California’s strict exposure standards. In 2010, the EPA stepped in to monitor for hexavalent chromium at Stevens Creek Elementary School in Cupertino, Calif., alleged to have come from a nearby cement plant. The EPA discontinued monitoring the school after finding no elevated levels of hex chrom.

Potential new regulation of hex chrom in drinking water, enforcement actions, or community concerns can lead to new lawsuits, including water utilities seeking to cover compliance costs and resourceful plaintiffs’ lawyers seeking to capitalize on local press. To minimize risks of future litigation and government enforcement, concerned companies should stay in touch with local, state, and regional water quality departments and seek early warnings regarding elevated levels of hex chrom in the drinking water in and around the area where their business is located. Communication with community groups and leaders is critical in amassing support for safe jobs, permit renewals, or expansions — as well as in discouraging plaintiff lawyer recruitment efforts for unwarranted cases. Due diligence and information gathering regarding other potential sources of hex chrom may also be warranted. Retaining science and engineering experts to provide assistance can bring critical knowledge to the problems well before they arise, and these professionals can help plan responses to community concerns or press inquiries.

Industry has long been targeted as emission sources for potentially toxic materials like mercury, fly ash, silica, and lead, and hex chrom is simply one of the most recent to receive press attention. Despite the many studies finding that cement industry operations are not causing harm in the water, air, or soil surrounding communities, industries like cement will remain a target and need to be vigilant and responsive to community or agency concerns. Companies should apply the lessons learned from structuring and implementing communication, coordination of scientific efforts, and government relations to address these risks on an integrated basis together with successful legal defense strategies. By combining unique health, safety, and environmental expertise with independent scientific experts and advice from nationally recognized litigators, operators can prevent and minimize risks associated with these challenges. AM

John McGahren and Mark Savit are partners with Patton Boggs LLP. McGahren can be reached at 973-848-5610 or jmcgahren@pattonboggs.com. Savit can be reached at 303-894-6117 or msavit@pattonboggs.com. Ora Sheinson is an associate with the practice. He can be reached at 973-848-5615 or osheinson@pattonboggs.com.

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