The presence of ammonium perchlorate—an ingredient used in rocket fuel, military munitions and other applications—in underground aquifers is contaminating drinking water supplies in several high-growth areas around the state.

Water providers in the Santa Clarita Valley, the Inland Empire, the Santa Clara Valley, Rancho Cordova and elsewhere are faced with closing wells, charging customers for treatment, and blending their supplies. Some cities could soon face limitations on additional development or be forced to consider charging developers for the additional cost burden. Ongoing litigation, prolonged negotiations, and regulatory uncertainty over legal limits of perchlorate allowed in drinking water complicate things further.

Although perchlorate is not widely believed to be cancerous at concentrations found in California’s drinking water, contaminated water can result in hypothyroidism in adults and developmental deficiencies in unborn babies. Decades of unregulated disposal by the military and defense contractors prior to the creation of laws governing the handling of the hazardous material is primarily to blame.

In 1997, technological advances enabled widespread testing that revealed hundreds of contaminated wells in California and throughout the West. By 2000, many dischargers had been identified and either engaged in settlement agreements or litigation aimed at recovering costs for cleanup and treatment. Many cases remain unresolved.

In March 2004, the California Environmental Protection Agency set a public health goal (PHG) of 6 parts per billion (ppb), a level at which perchlorate in drinking water is not believed to cause harm.

The PHG is merely a regulatory guideline, however, and is not strictly enforceable. The California State Department of Health Services is working on setting maximum contaminant levels (MCLs) for perchlorate in drinking water — the level at which water retailers could be found liable for delivering a harmful product. The MCL is not required to be the same as the PHG.

The Federal Environmental Protection Agency has also set standards for perchlorate contamination, but they are more lenient.

In the Santa Clarita Valley, six wells have been closed—one permanently—as a result of perchlorate contamination. Local water suppliers and the valley's largest polluter, Whittaker-Bermite, along with current property holders, have been embroiled in litigation since 2000. According to Fred Fudacz, legal counsel for Castaic Lake Water Agency (CLWA), the local water wholesaler and the lead plaintiff in the suit, a good portion of the roughly $80 million needed for long-term cleanup—perhaps $44 million—is available, but no money has changed hands yet.

In the meantime, conservation groups including Santa Clarita Organization for Planning the Environment (SCOPE) and the Sierra Club have challenged two recent development proposals, one for an industrial park, the other for 1,089 residential units. Environmentalists argue the developments count on water that CLWA hasn't demonstrated it can provide. The environmental impact reports (EIRs) for these projects, known respectively as the Gate-King Industrial Park and Riverpark, rely on CLWA's assertion that contaminated well water is readily available because a settlement for perchlorate pollution is virtually in hand. They also rely on a transfer of 41,000 acre-feet per year transfer from the State Water Project.

Yet, the decision in California Oak Foundation v. City of Santa Clarita, 133 Cal.App.4th 1219 (see CP&DR Legal Digest, December 2005) cast doubt over the use of the contaminated water, and EIRs for the water transfer have not been certified. Without these sources on the books, the region is short the water necessary to approve the projects, said Lynne Plambeck, SCOPE president. The city has not a final decision on either Gate-King or Riverpark.

The rapidly growing Inland Empire cities of Rialto, Colton, and Fontana, whose water is now heavily contaminated by perchlorate discharge from a former World War II munitions base in northern Rialto, are also without a solution. The City of Rialto has filed a suit targeting 42 parties, including the Defense Department, military contractors and fireworks operations, seeking hundreds of millions of dollars for treatment and cleanup for a site that presents a problem for local water providers.

Roughly 40% of Rialto's wells are contaminated, said Bill Hunt, the interim director of the city's public works department. “We don't receive any state water,” said Hunt, “and about 95% of our municipal water supply comes from groundwater.” Two of Rialto's seven contaminated wells are now being treated, with another coming on line soon, he said. But without any real compensation, the city — whose City Council has adopted a zero-tolerance policy on perchlorate — has been forced to pass the cost along to its customers for now.

Some communities have considered blending water from contaminated wells with clean water from other wells, said Kurt Berchtold, assistant executive officer of the Santa Ana Regional Water Quality Control Board. But with MCL levels hanging in the balance, it’s hard for a provider to know how to approach this, he said. An MCL of 8 to 10 ppb would allow most water providers to blend quite easily, said Berchtold, while an MCL of 2 to 4 ppb might force a reliance on treatment.

The Santa Ana board has issued a cleanup order to Black & Decker and forced negotiations with Goodrich, both defense contractors who once occupied Rialto’s World War II site. Some federal and state appropriations have been provided, said Berchtold, but the money has arrived in a slow trickle.

One of the biggest questions facing retailers is how to cover treatment cost. A city like Rialto could pass the costs along to developers provided that it is a developer’s project that necessitates the cleanup, said Fred Curry, chief of the California Public Utilities Commission's (PUC’s) Water Board, “It’s often argued that cost-causers should pay the cost,” said Curry. Hunt, however, said this is not an option that Rialto has seriously considered because much of the city’s growth is to the north, a portion of the city supplied by other retailers.

Passing the cost on to the developers is not an option that the Fontana Water Company — which supplies Fontana and portions of north Rialto — is likely to embrace, said General Manager Mike McGraw. “Hopefully, we wouldn't get to that point,” said McGraw, “but if we did, we'd probably opt to spend some of our own money on treatment, or pursue a rate increase spread amongst all water users.”

“Putting this all on private developers may not sit well with the community and the PUC may not look favorably upon it either,” said McGraw, adding that Fontana would do what it could to clean up the water supply and avoid holding up regional economic development.

Kurt Berchtold, Santa Ana Regional Water Quality Control Board, (951) 782-4130.
Fred Curry, California Public Utilities Commission, (415) 703-1739.
Fred Fudacz, Nossaman, Guthner, Knox & Elliott, (213) 612-7823.
Bill Hunt, City of Rialto, (909) 820-2608.
Mike McGraw, Fontana Water Company, (909) 822 2201.
Lynne Plambeck, Santa Clarita Organization for Planning The Environment (661) 255-6899.