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.