The City of Tulare and the Cal Water Company say a group of chemical manufacturers spent decades contaminating local groundwater with a dangerous, cancer-causing pollutant, and now they’re looking to make the alleged polluters clean up their mess.
Lawyers for the City of Tulare could be in court as soon as February 8 to take on Dow Chemical and Shell Oil, the two main defendants in a series of lawsuits accusing them of spreading the chemical TCP by hiding it in pesticides widely used throughout the Central Valley. According to a summary of the case filed by attorneys for the city, Dow, Shell and others are accused of having “knowingly and willfully manufactured, promoted and sold TCP and products containing TCP when they knew or reasonably should have known that this harmful compound would reach groundwater, pollute drinking water supplies, render drinking water unusable and unsafe, and threaten the public health and welfare. …”
TCP, or 1, 2, 3-trichloropropane, has been discovered in 372 wells throughout the state, including 43 in Tulare County, 56 in Fresno County and 111 in Kern County, according to the State Water Resources Control Board. The chemical has been shown in animal models to cause increased rates of liver and kidney damage, and cancer. The water board has established a notification level of 0.05 micrograms per liter — equivalent to five parts per trillion — for the pollutant, which is now recognized as a carcinogen by the state.
According to Todd Robins, an attorney for Tulare, at least 13 wells in the city’s drinking-water system have tested positive for excessive levels of TCP. And, Robins said, the companies that made and sold the product knew it did not work.
“It’s was a completely unnecessary ingredient in the product,” he said. “It’s a very persistent and mobile contaminant that really gets deep down in to aquifers.”
Growers who were sold the contaminant, used as a pesticide to treat nematodes, tiny worms that attack crops, had no idea the TCP was present, and they used it liberally.
“We have evidence of use all over the place in the ‘70s and ‘80s,” Robins said. “The farmers were innocent. They weren’t told the (TCP) was in there.”
The other lawsuit nearing its day in court involves the Cal Water Company, supplier of drinking water to Visalia and other areas in the Central Valley including the City of Bakersfield. That suit has been pending for more than a decade, and has finally come to the front of a line of dozens of similar cases all being adjudicated in San Bernardino County.
“There are approximately 100 wells involved throughout the Central Valley area we’re proceeding on, approximately 15 are in the Visalia area,” said Robert Chapman, attorney for Cal Water. “The majority of cases ahead of ours have settled shortly before trial. Our case is much bigger than those cases. We are proceeding as if we are going to trial.”
It could be another two years, Chapman said, before the case comes to trial. Pending cases against the same defendants have been brought by the Woodville Public Utilities District, the Ivanhoe PUD, the London Community Service District, the Orosi PUD, Traver Water, the Earlimart PUD and several water suppliers in Fresno County, including Clovis and Fresno.
Cleaning up the Mess
In both of the ongoing cases, plaintiffs are suing to force the companies they say are responsible to pay for the cost of cleanup. Listed in the Tulare case as defendants are Dow Chemical, Dow Agrosciences, Shell Oil, Shell Chemical, Occidental Chemical, Wilbur Ellis Company, J.R. Simplot Company and FMC Corporation.
“We’re looking to Dow and Shell because there was no need for TCP in this product,” Chapman said. “It wasn’t the active ingredient. It’s a design defect.”
Internal memos dating back decades show the companies believed TCP was a “garbage” chemical. Experts who have worked in the field say adding chemicals that were essentially waste products to other products in order to avoid the cost of remediation was a common practice at the time.
Both Chapman and Robins say their clients, as well as those who rely on them for drinking water, were the victims of the companies’ illegal actions. The lawsuits, they say, were filed in the hope of shifting the cost of cleanup off the backs of taxpayers.
“This water needs to be cleaned up and is going to be cleaned up one way or another. They should pay for it,” said Chapman. “That’s our purpose, to make sure the ratepayers shouldn’t have to pay for someone else’s wrongdoing.”
In the Tulare case, the suit seeks to force the defendants to cover the cost of keeping TCP out of users’ tap water now and as long as it lingers in the ground.
“The best outcome for the City of Tulare would be recovery of funds that are sufficient to pay for the instillation of effective treatment to remove this contaminant from the water to non-detectable levels,” said Robins
To make that happen, the wells where TCP has been detected will have to be fitted with granulated activated carbon filters. Robins also said those responsible for the contamination should also be forced to pay for maintenance of those filters “as long as it takes, so people in Tulare won’t have to be exposed to this contaminant.”
That could be quite a long time.
“The half-life of TCP in groundwater varies, but it’s on the order of 200 years. This is a very, very persistent chemical,” said Robins. “Our experts say, and what Dow and Shell certainly knew, if you include or don’t remove a chemical that’s this persistent, and inject it in the ground, it’s literally a recipe for disaster.”
No Immediate Threat
While contamination occurred during the 1970’s and ‘80s, TCP wasn’t listed as harmful by the state until 1999. It was soon after that the lawsuits began, as water suppliers sought to protect their users from the chemical’s uncertain effects on humans. Those using the water should not be concerned about an immediate threat.
“This chemical has never been proven to make humans sick,” said Robins, who added at least one jury found TCP responsible for a case of human cancer. “The evidence in this case is animal evidence” said Robins, who added at least one jury found TCP responsible for a case of human cancer. “It’s a chronic, long-term risk. It’s much more about preventing people from getting sick. The only way people are going to get sick is if the cities don’t do anything about it, and the they are.”
The state Office of Health Hazard Assessment has set a “public health goal” of seven parts per trillion for TCP, citing “significant increases in tumors” observed in lab animals exposed to the chemical. While evidence of increased cancer in humans is “lacking,” this is because trials using human subjects cannot be performed.