Hinkley: The Erin Brockovich Case
Hollywood has built Erin Brockovich into a maverick champion of the victims of corporate negligence, since she exploded onto the scene in 1987 with a $333 million judgement against a utility company for allegedly poisoning its customers. But alternate views exist too, painting her as a greedy opportunist who works with ambulance-chasing lawyers to use shoddy science to win vast sums from wealthy utilities.
In the year 2000, the movie Erin Brockovich told the world the true story of a heroic whistleblower, in the person of a humble paralegal, who successfully challenged an evil mega-corporation that had thoughtlessly poisoned the residents of a small California town for many years. The real-life Erin Brockovich used that seminal victory as a springboard to a career as a high-profile media personality and consumer advocate. Today we're going to look at the controversial case that made her famous, as you may have heard that its underlying science has been either debunked or confirmed. As in so many stories, the truth is often not so simple.
Hinkley, CA probably wouldn't exist at all if it weren't for the nearby city of Barstow, which itself probably wouldn't exist but for the intersection of railroads and highways. It is far from anywhere in the stark and inhospitable Mojave Desert, and when a few roads and railways first popped up to serve its nascent and short-lived mining industry, those corridors soon became its only real reason to be. Even today, Barstow survives mainly on servicing locomotives and selling gas and fast food to highway travelers. And Hinkley was only there to grow a few crops for Barstow and as a compressor station for the local natural gas utility, Pacific Gas & Electric.
PG&E operated a large pipeline network to deliver natural gas to its customers throughout California, and Hinkley was the site of one of the stations that compressed the gas to get it through the pipes. Compressing it heats it, so that hot gas would first be routed into a cooling tower before going into the pipes. Inside these evaporative coolers, water was drizzled through the gas to cool it. But this addition of water would rust the equipment, so to prevent that, the cooling water included an efficient and inexpensive corrosion inhibitor called chromium 6 (hexavalent chromium). This took place between the years 1952 and 1966, and it was the common and normal industry practice. In the 1950s very little thought was being given yet to environmental toxins, and so the standard practice was to dump the used cooling water in outdoor ponds. This was the remote and unused Mojave Desert, so big ponds were simply bulldozed into the desert floor, filled with water laced with chromium 6, and left to percolate into the ground. Some 750,000 gallons per month were disposed of in this way. Nobody at the time suspected there might be any problem with this, so there was nothing secret or hidden about it. It's just the way things were done in those days. The only thing that stopped the practice in 1966 was that the ponds were finally lined, stopping the chromium 6 from getting into the groundwater.
21 years later, in 1987, PG&E reported to the authorities (the California Regional Water Quality Control Board and the San Bernardino County Department of Environmental Health Services) that a groundwater monitoring station had recorded a level of .58 ppm of chromium 6, some 11 times the drinking water standard of the day of .05 ppm. Of 50 samples taken, 11 were found to exceed that standard, and the pattern indicated that the chromium 6 constituted a plume in the groundwater that extended about a mile north of the compressor station. When Cleanup Abatement Order 6-87-160 was issued ordering PG&E to fix the problem, a few residents began looking for lawyers.
The Los Angeles law firm of Masry & Vititoe did what can probably be described as ambulance-chasing, and filed a class action lawsuit against PG&E. A paralegal at the firm, Erin Brockovich, was put to work recruiting more victims and also tracking down all the research she could find that said chromium 6 was toxic. Other larger firms with more resources were brought in and were eventually able to expand the plaintiff class to some 650 Hinkley residents. Soon the case against PG&E was settled — and that's where the story ends.
But the reason the story ends there is that the settlement was through arbitration, not through the courts. This benefitted PG&E because arbitration is a private process, and is not open to the public. It does not involve court filed documents that you and I can look up. Whatever information might have come out about PG&E's practices remains forever hidden and unknown. And it benefitted the plaintiffs as well, as arbitration is a much more informal process. The big law firms representing the Hinkley residents were friends with the arbitrators in many cases — the arbitrators typically being current and/or retired judges. Arbitration is relatively unfettered by ethical standards. Attorneys are free to give gifts to arbitrators. In fact, after the case ended, the plaintiffs' attorneys took the arbitrators on a Mediterranean luxury cruise. They could afford it: the confidential arbitrated settlement totaled $333 million, with $133 million plus some $10 million in unspecified costs going to the lawyers. Erin Brockovich herself was given a bonus of $2 million — all for going to the UCLA library and cherrypicking the very worst anti-chromium 6 literature she could find to support the largest possible settlement against PG&E. She has stated that she ultimately collected 120 articles.
But for our purposes, the privately conducted arbitration means that nobody knows what evidence either side presented. It is not known what sort of medical problems were ultimately claimed by what number of Hinkley residents, or what data may have been presented tying those damages to the chromium 6. Even the official accounting of who received how much money is secret. The only thing that is known is what both parties were publicly claiming before the case went under the cloak of arbitration. Hinkley residents blamed just about every medical malady it's possible to have on the chromium 6. Rotten teeth, intestinal problems, bloody noses, stomach cancer, lung cancer, bad backs, tumors, heart disease, kidney problems, skin problems — such a diverse assortment that the only thing we can say for certain is that they did not all have a single cause. But private arbitration also means that there was no particular standard of evidence that had to be met; the arbitrators simply had to judge for themselves whether they felt a payment was warranted, and how much it should be. How they did it was up to them; few rules govern the process.
The initial publicly filed lawsuit also made multiple claims that PG&E had known about the chromium 6 contamination for all those intervening 21 years, but had done nothing and had covered it up; even that two PG&E employees had been ordered to destroy a large quantity of records but had turned whistleblower. Whatever evidence may or may not have been presented to support those charges is not known, again because of the private arbitration. Typically lawyers throw everything including the kitchen sink into initial complaints; there's little useful information we can glean from the original Hinkley complaint that the whole Erin Brockovich legend is based on.
Normally, what we'd do in a case like this to determine validity is to look back now that time has gone by and we now have a long-term data set: we can see if there was indeed a cluster of some specific medical condition in Hinkley that was temporally correlated with the exposure to chromium 6. We did this back in episode #238 when we looked at the "downwinders", residents of St. George, UT who lived downwind of the Nevada Test Site during the days of atmospheric nuclear tests. The government established a fund from which billions of dollars have been paid out to anyone who lived in a specific area during a specific time and had contracted a disease on an official list. But we know now that compensation was premature. What we ultimately learned after decades of epidemiological study of tens of thousands of residents is that there were no correlations at all between the atomic tests and illnesses. Just as much time has gone by since the Hinkley incident; ought we not be able to look back and do the same kind of study, and find out whether Erin Brockovich was right or wrong?
Sadly, the answer is no. And the reason is that that data simply doesn't exist. Hinkley is now a third the size it was when the chromium 6 was percolating into the ground, and is continuing to shrink every year. The town is stigmatized and nobody wants to live there. In 1987, PG&E had to buy the properties of everyone within the affected area so they could do their required cleanup; those people all left and most of them have been off the radar ever since. Even if they hadn't left, their numbers were simply too small for a statistical analysis to have any significance. And, once again, the private nature of the arbitration casts its shadow over this as well. No formal register exists of who reported what medical conditions and when. There isn't even a place to start such an analysis.
About the only thing we can do is review what's actually known about chromium 6. Chromium is found naturally in the environment, in both the trivalent form chromium 3 and the hexavalent form chromium 6. An average person gets about 60 micrograms of chromium a day just by eating food on Earth; once in the digestive system, nearly all the chromium 6 is reduced to chromium 3 quite efficiently. Chromium 3 is not considered dangerous.
Chromium 6, however, is known to be toxic in two ways: first, by contact. Long duration direct exposure to skin can produce an irritating allergic reaction; however, dilution at the levels we're talking about — parts per million — is perfectly safe. The other way it's harmful is inhalation, which is typically found among factory workers or welders who are dealing directly with chromium 6 fumes. This is considered carcinogenic and can cause lung cancer. It's also not related to what happened at Hinkley, which was oral ingestion.
There hasn't been a huge amount of scientific testing of oral ingestion of chromium 6 in humans. Often mentioned is a case from China where village residents drank water contaminated with chromium 6 for many years and some developed stomach cancer. However, the paper on this study was later retracted. A rat study is often mentioned, but beyond being about rats not humans, and giving them enormous lifetime doses, it's generally considered flawed and inconclusive. White papers from the US Environmental Protection Agency do not find any reliable evidence of risk from oral ingestion of chromium 6. And, to top it off, let's quote from a pair of assessments published in the Journal of Toxicology and Environmental Health. One concludes:
And the other finds:
So to sum up, we're not close to being able to say for sure that the residents of Hinkley were harmed by PG&E's chromium 6. And neither were the lawyers who said so anyway.
Science is done in the laboratory by trained scientists. It's not done in the cubicles of paralegals; it's not done in courtrooms, and science is most certainly not done behind the closed doors of private arbitrations that are really just bargains for millions of dollars and Mediterranean cruises. Judge for yourself Erin Brockovich as a Hollywood movie; but please don't regard it as a science finding.
Correction: An earlier version of this misstated one aspect of arbitration as requiring that both parties agree to the settlement. That's how mediation works, not arbitration; arbitrators are empowered by both parties to make a decision. —BD
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