In a divided decision, a California appeals panel has ruled state regulators were within their rights to limit the presence in drinking water of a rocket fuel chemical, to a level much lower than what some scientists say is safe, over the objection of a manufacturers group.
The March 23 ruling was penned by Associate Justice Andrea Hoch, with concurrence from Associate Justice Jonathan Renner of California Third District Appellate Court. Associate Justice Elena Duarte dissented. The ruling favored California's Office of Environmental Health Hazard Assessment (OEHHA) in an action brought by the California Manufacturers & Technology Association.
In 2015, the OEHHA restricted the amount of perchlorate in drinking water to a "Public Health Goal" of 1 part per billion (ppb). Perchlorate is a compound found in rocket fuel, road flares and air bag inflation systems. Since 2004, the amount had been 6 ppb. The OEHHA acted under the California Safe Drinking Water Act.
According to court papers, perchlorate, if ingested in certain quantities, can inhibit the uptake of iodide in the thyroid gland, which, in turn, can adversely affect development in children and cardiovascular health in adults.
The Manufacturers Association went to Sacramento County Superior Court, contending 1 ppb was too restrictive. Further, they argued the 1 ppb level violated the law requiring the OEHHA to only set a level at which "no known or anticipated adverse effects on health occur, with an adequate margin of safety.”
Judge Laurie Earl rejected the Manufacturers' arguments.
"[The] OEHHA could set the Public Health Goal at a level where there exist foreseeable, if not inevitable, adverse health effects," and the statute "builds into the process reasonable room — a margin — to account for uncertainty," Hoch said.
Hoch added that precautions against "anticipated" harmful health effects are allowed by the statute.
In Associate Justice Duarte's dissent, she determined the OEHHA did not fully do its job.
"The majority concludes that OEHHA is entitled to set the Public Health Goal below the level expressly required by the statute because the [Safe Drinking Water] Act requires it to set the Public Health Goal 'with an adequate margin of safety.'
"I conclude instead that the statute requires OEHHA to first determine the level at which the target substance is anticipated to cause or contribute to adverse health effects — which OEHHA failed to do here — and then to apply an adequate margin of safety," Duarte said.
The Manufacturers Association has been represented by Jay-Allen Eisen, Annie Amaral and Alexandra LaFountain, of Downey Brand, of Sacramento.
The OEHHA has been represented by California Attorney General Rob Bonta and Edward Ochoa, Laura Zuckerman and Elizabeth Song, of Bonta's office.
The American Chemistry Council filed friend-of-the-court arguments in support of the Association.