Water Well Journal

July 2016

Water Well Journal

Issue link: https://read.dmtmag.com/i/692787

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Page 51 of 87

B usinesses who work regularly with California's public water supply can breathe a collective sigh of relief. On May 2, the Superior Court of the State of California for the County of Alameda issued its order granting final judgment in favor of the California Of- fice of Environmental Health Hazard and Assessment (OEHHA), and uphold- ing the existing "safe harbor" level for lead exposure in the state. While an appeal may be forthcom- ing, the world's strictest environmental regulations related to lead exposure, for now, remain intact and will not become even more stringent. The Existing Safe Harbor Readers will recall in early in 2015 a for-profit environmental enforcement group sued OEHHA in state court, seek- ing to eliminate the existing "safe har- bor" limit for lead exposure established for businesses working in California. Among many other implications, the safe harbor allowed construction com- panies operating in the state to release water into the ground with a concentra- tion of lead at or below the safe harbor level without incurring potentially mas- sive penalties under California's Drink- ing Water and Toxic Enforcement Act of 1986, also known as California's Propo- sition 65. The safe harbor is meant to be some- thing of a sanctuary within a morass of well-intentioned but highly burdensome environmental regulations. Construction businesses operating in California have relied on the safe harbor level and have struggled to comply with it for more than 20 years. The 0.5 microgram per day safe har- bor level is the strictest in the world and is already 60 times lower than the maxi- mum exposure level permitted by the U.S. Environmental Protection Agency's current drinking water regula- tions (set at 30 micrograms per day). It is one one-thousandth of the OSHA- permissible exposure limit of 50 micro- grams of lead per cubic meter of air. Indeed, literature published by the EPA suggests background levels of lead exposure from soil in the United States range from 3 to 6 micrograms per day— meaning the general public may be exposed to six to 12 times the existing safe harbor level from everyday living. While lead was once used in thou- sands of consumer products across the world (and still is in some products such as car batteries), in recent years scien- tists have chronicled the calamitous health effects of lead exposure. Aware- ness as to those disastrous consequences may now be at an all-time high, as alle- gations swirl concerning lead contami- nation in drinking water served to the public in Flint, Michigan. As a neurotoxin, lead can wreak havoc on the nervous system. Even in very small concentrations, lead is a known carcinogen and can cause birth defects and other reproductive harm. The Lawsuit The Mateel Environmental Justice Foundation argued the 0.5 microgram per day safe harbor level was not estab- lished by the OEHHA following proper statutory protocol, and thus should be eliminated. Mateel explained that the safe harbor frustrated and unduly com- plicated its mission to enforce Califor- nia's environmental protection laws and reduce the exposure of California residents to lead. The lawsuit centered on the proce- dure the OEHHA used to establish the safe harbor level for lead exposure of 0.5 microgram per day. Under Califor- nia law, the OEHHA was required to set the safe harbor level at a level 1000 times lower than the level at which there was "no observable effect" on human beings, based on evidence and scientific studies similar to those used to list cer- tain chemicals and compounds as repro- ductive toxins or carcinogens under California's environmental regulatory framework. Simplifying things slightly, rather than calculating its own "no observable effect" level, the OEHHA instead relied heavily on the permissible exposure limit set by the Occupational Safety and Health Administration of 50 micrograms per cubic meter of air. OSHA's permissi- ble exposure limit was used to calculate a maximum daily exposure of 50 micro- grams per day, which was then divided by 1000 to obtain the current safe har- bor level of 0.5 microgram per day. Among other contentions, Mateel argued the OEHHA's reliance on the OSHA-permissible exposure level meant the OEHHA did not comply with its own statutory mandate to set the safe harbor at a level 1000 times less than the level at which there is "no observ- able effect." Mateel pointed to statements made in the scientific studies relied upon by OSHA in setting its permissible expo- sure level, which mentioned quite PETER BERG IT'S THE LAW CALIFORNIA'S 'SAFE HARBOR' LEVEL FOR LEAD EXPOSURE WILL REMAIN INTACT As a neurotoxin, lead can wreak havoc on the nervous system. The world's strictest environmental regulations related to lead exposure, for now, remain intact. waterwelljournal.com 50 July 2016 WWJ

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