Perchlorate Standards: Legal Implications
By John A. Boudet,
Ronald C. LaFace and
Robert J. Vincze, Greenberg
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Potentially billions of dollars in liabilities are at stake over the
U.S. Environmental Protection Agency’s (“EPA”) impending establishment of
national standards for perchlorate contamination. Perchlorate, a natural
and man-made salt, is used primarily as an oxidizer in rocket fuel and munitions.
It also is used in the production of paints, dyes, matches, fireworks, safety
flares, air bag inflators, and lubricating oils. The setting of national
drinking water and dosage standards will significantly affect cases relating
to the cleanup of contamination as well as personal injury cases.
|"The setting of national drinking
water and dosage standards will significantly affect cases relating
to the cleanup of contamination as well as personal injury cases."
Potential plaintiffs are expected to base liability for contamination
on the Comprehensive Environmental Response, Compensation and Liability
Act (“CERCLA”), negligence, nuisance, trespass, and related case law. Many
of the principles for liability have evolved in the context of addressing
other types of hazardous waste. Unless parties have agreed to a remedy,
what has yet to be determined for perchlorate contamination is the level
of cleanup and the cost. The setting of national standards also has the
potential to trigger a wave of personal injury claims, including claims
for cancer, fear of cancer, birth defects, medical monitoring, and a host
of endocrine disorders. In addition, the setting of national standards could
significantly influence the scope and admissibility of expert testimony
in court proceedings.
On October 27, 2003, the U.S. Department of Defense (“DOD”) and the EPA
presented competing views to a panel of 16 U.S. National Academy of Sciences
(“NAS”) scientists at Washington, D.C. At the meeting, the EPA advanced
a standard for perchlorate in drinking water of one part per billion (“ppb”).
The DOD stated that 200 ppb is safe. Toward the end of resolving the dispute,
Congress charged the NAS to issue findings that may come as early as next
year. Any standard adopted by the EPA would have to undergo publication
and notice and comment in accordance with rulemaking procedure. Challenges
to any such rule require participation in the rulemaking process.
If the established standards are relatively low, as the EPA argues, remedial
actions may cover releases in at least 18 states and the drinking water
of more than 15 million people.1
Obviously, considerable testing has occurred even without an established
Various states also may set standards which will be greatly influenced by
the national standard. California’s current guideline is 4 ppb perchlorate
in drinking water. Furthermore, risk-based cleanup levels for sites under
the Small Business Relief and Brownfield Revitalization Act (“Brownfields
Amendments”) will be determined based on state and national standards. It
is clear that the national standard for drinking water is the primary battleground.
Cleanup Liability - As stated, the national standards set will largely
determine the scope and cost of any remedial actions as potential plaintiffs
may seek to establish liability under CERCLA and common law theories of
liability. The following analysis sets forth the elements necessary to establish
liability for response costs under CERCLA and for damages under certain
common law theories of liability.
In order for a plaintiff to recover response costs under CERCLA, it must
establish that (a) perchlorate is a hazardous substance; (b) there has been
a release of perchlorate at defendant’s facility; (c) the release or threatened
release of perchlorate caused the plaintiff to incur necessary response
costs consistent with the National Contingency Plan (“NCP”); and (d) the
defendant is within one of the four classes of persons subject to CERCLA’s
liability provisions: owner, operator, transporter or arranger. In California,
Castaic Lake Water Agency v. Whittaker Corp., et al., held in part that
perchlorate is a hazardous substance since the definition of hazardous substance
includes hazardous wastes under the Resource Conservation and Recovery Act
The court reasoned that the evidence presented showed that perchlorate is
an oxidizing anion, is ignitable and therefore is a characteristic hazardous
waste upon disposal.
Regarding a release at a defendant’s facility, a plaintiff must show
that it is a “site or area where a hazardous substance has been deposited,
stored, disposed of, or placed, or otherwise come to be located.”4
In order to establish that a release of perchlorate occurred, a plaintiff
must provide evidence that perchlorate was spilled, leaked, pumped, poured,
emitted, emptied, discharged, injected or disposed into the environment,
or that it escaped or leached into the environment.5
The disposal or spilling of perchlorate at a site may constitute a sufficient
A recently enacted California law may assist plaintiffs’ ability to establish
“releases” at defendants’ facilities. On September 29, 2003, former Governor
Gray Davis signed a bill that requires companies to disclose the storage
of more than 500 pounds of perchlorate in any year since 1950, on or before
January 1, 2005, and annually thereafter. (Senate Bill 1004). The definition
of “perchlorate storage facility” under this law excludes military munitions
storage facilities within a military installation that meet the DOD Explosive
Safety Board requirements.6
Defenses are available to disallow costs under CERCLA that were not incurred
consistent with the NCP. However, preventive monitoring and the provision
of alternate water supplies may qualify as response costs. The terms removal
and remedial actions under CERCLA are broadly defined.7
Last, regarding the status under CERCLA, the status that is most readily
established is ownership. Current and former owners of a site may be liable
under CERCLA. A former owner may be liable if it owned the site “at the
time of disposal of any hazardous substance.”8
Nuisance and trespass claims often accompany CERCLA claims. Generally,
nuisance is the interference with the use and enjoyment of real property.
Groundwater contamination may constitute a nuisance. Trespass is the unlawful,
physical invasion of another’s property, which invasion can occur by the
leaching of contaminants. In a nuisance or trespass case, the measure of
damages is often the diminution in the value of the property or the difference
between the value of the real property before the injury and after the injury.
Again, the level of the standard will largely determine the damages. The
value of the property after contamination is discovered will be a function
of the cleanup required to meet the standard or, in the case of drinking
water, an alternate supply or treatment.
The science upon which any standard is based also is critically important.
Any perceived risk can make a property a white elephant. On the other hand,
thorough science that demarcates exposure pathways and indicates dosages
for harm may serve to reduce damages by eliminating undue taint.
Personal Injury and Expert Testimony - Cases involving personal injury
from contamination are often won or lost based on the credibility of expert
witnesses and the subsequent advance of science. Many cases turn on causation
and the turn on causation and the reference dose, or exposure, required
to manifest an injury or illness. The reference dose is an estimate of the
daily dose below which risks are considered negligible for a lifetime exposure.
Therefore, understanding the strengths of the science behind a standard
is crucial to any defense.
In federal court, testimony by experts is allowed if (1) the testimony
is based upon sufficient facts or data, (2) the testimony is the product
of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case. (Fed. Rule of
Evidence 702). This rule was amended to its present form in response to
Daubert v. Merrell Dow Pharmaceuticals, Inc.9
Based on the influence of this Supreme Court case, challenges to expert
testimony are commonly called Daubert challenges. Under Daubert, judges
are charged with the responsibility to serve as gatekeepers and to exclude
unreliable expert testimony.
Some of the non-exclusive factors for a court to consider under Daubert
are (1) whether the expert’s technique or theory can be or has been tested
in an objective sense; (2) whether the technique or theory has been subject
to peer review and publication; (3) the known or potential rate of error
of the technique or theory when applied; (4) the existence and maintenance
of standards and controls; and (5) whether the technique or theory has been
generally accepted in the scientific community.
For a fair outcome, it is imperative that affected parties participate
in the process to develop standards with these criteria in mind. For example,
any report issued by the NAS should meet these criteria to stand up in court
either through a rulemaking challenge or in the context of a tort or personal
In addition to the expected NAS report, parties which have handled perchlorate
should track research by the Food and Drug Administration (“FDA”). The FDA
is developing analytical methods to determine the environmental impact of
perchlorate in food.10
Nevertheless, the “Perchlorate Questions and Answers” dated September 20,
2003, issued by the FDA states that the NAS study will be a “major factor”
in determining if some levels of perchlorate in food are a public health
In summary, the primary battleground over perchlorate contamination is
the development of a national standard for drinking water. Such a standard
will largely determine the future costs of removal and remedial actions,
the cost to redevelop brownfield sites, and property damages. With respect
to personal injury, developing science must pass Daubert criteria for admissibility
in federal court. Peer review also may be required of science developed
by state agencies before state standards are promulgated. It is imperative
for current landowners, former landowners and other interested parties to
actively participate in the federal and state legislative and rulemaking
processes to ensure fair and sound standards and for a party to have standing
to challenge any deficiencies in future rulemaking.
2 See 1999 DEC Army Law. 54.
3 272 F. Supp. 2d 1053 (C.D. Cal. 2003).
4 42 U.S.C. § 9601(9).
5 Id. at § 9601(22).
6 DOD 605.9-STD.
7 42 U.S.C. § 9601(23) and (24).
8 42 U.S.C. § 9607(2).
9 509 U.S. 579 (1993).
© 2003 Greenberg Traurig
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