BY CRAIG A. TRISTAO AND LEE N. SMITH

Lawsuits brought by municipalities against the manufacturers of chemicals, including 1,2,3, Trichloropropane, whom the municipalities contend contaminate drinking water could be for naught as a federal jury awards no damages after finding liability for sodium nitrate contamination of groundwater.

A recent federal jury decision in an action brought by the City of Pomona against a North American subsidiary of SQM, a worldwide chemical manufacturer based out of Chile, may affect whether cities can recover the costs of remediating chemicals used in past agricultural operations from groundwater, due to changing regulatory requirements.

The City of Pomona brought its suit to help offset the cost of treating drinking water supplies contaminated with sodium nitrate, a chemical used as an agricultural fertilizer in citrus orchards in the 1930’s and 1940’s, to meet the State’s drinking water Maximum Contaminant Level (MCL) of 10 milligrams per liter (mg/L). The City of Pomona sought $30 million dollars in damages to offset the cost of remediating sodium nitrate in its drinking water sources. The matter went to the jury, and although the jury found SQM liable for sodium nitrate levels in drinking water in excess of the State MCL, the Jury did not award the City of Pomona any damages. Likely because, as SQM’s defense counsel argued in closing: “at the time SQM was manufacturing its product in the 1930s and 1940s, they could not have been aware of future regulations in California.”

The same outcome could hold true for municipalities who are considering suing chemical manufacturers to obtain funds to aid in the remediation of contaminated groundwater.

For example, 1,2,3,-Trichloropropane (1,2,3 -TCP), a manmade chlorinated hydrocarbon with high chemical stability, has been used as a cleaning and degreasing solvent and in the Central Valley was used as a fumigant and a pesticide additive. State regulation of 1,2,3 -TCP began in 1992 when it was added to the list of chemicals known to the state to cause cancer, pursuant to California’s Safe Drinking Water and Toxic Enforcement Act (Proposition 65). Subsequently, in 1999 the State Water Resources Control Board (SWRCB) established a .005-micrograms per liter (?g/L), or five parts per million (PPM),drinking water notification level based on cancer risks derived from laboratory animals studies conducted by the United States Environmental Protection Agency (US EPA) in 1997. Thereafter, in 2001, following concerns 1,2,3-TCP may be contaminating California drinking water sources, the SWRCB included 1,2,3-TCP as an unregulated contaminant for which for which monitoring is required (UCMR). Eight years later, in 2009, the California Office of Environmental Health Assessment (OEHHA) within the California Environmental Protection (CALEPA) set a public health goal (PHG) for 1,2,3-TCP in drinking water of  .0007-micrograms per liter (?g/L)or seven parts per billion (PPB).In 2017the SWRCB adopted a maximum contaminant level (MCL) of 0.000005 mg/L (ppm) which is equal to .005 parts per billion or 5 parts per trillion) as the MCL for 1,2,3-TCP.

In addition, the proposed  regulations will set the detection limit for purposes of reporting (DLR) at 0.000005 mg/L, and in July 2017, apprisedpublic water systems they would have to monitor for 1,2,3-TCP beginning in January 2018, and if the water suppliers are out of compliance with the new standard after an average of four sampling quarters, they will have to notify their consumers and take measures to come into compliance.

To date 110 drinking water sources in Kern County, 64 drinking water sources in Fresno County, and 51 drinking sources in Los Angeles County are not in compliance and will have to come into compliance. This has led to several municipalities suing manufacturers of products which contained 1,2,3-TCP, and which were used decades ago before any environmental standards were set. Their goal, like the City of Pomona, is to obtain funds from the manufacturers to offset the high cost associated with the treatment of water to hopefully bring concentrations of 1,2,3-TCP into compliance with the State’s MCL. The jury outcome the City of Pomona faced could hold true for municipal suits against the manufacturers of agricultural products which contain chemicals such as 1,2,3-TCP. Just as was the case with SQM and sodium nitrate, at the time companies manufactured and sold their products with 1,2,3-TCP, California did not regulate 1,2,3-TCP. Therefore, municipalities which sue to obtain money to aid in the remediation of 1,2,3-TCP could likewise win with respect to liability, but not be awarded any damages.

The City of Pomona is likely to appeal the Jury’s verdict (there have been previous appeals in this case), as it considers the matter of damages to be subject to strict liability, and therefore the Jury’s failure to award damages to be in error. However, in the interim, this case shows that public water supplies  seeking reimbursement for the remediation of chemicals such as 1,2,3-TCP from fertilizer manufacturers may face juries sympathetic to companies who were acting in accordance with the law in the past, and therefore should not bear the cost of regulatory changes.

The attorneys at Coleman & Horowitt, LLP have experience representing clients in all aspects of environmental regulation, from working with Regional Water Quality Control Boards on Waste Discharge Requirements (“WDRs”) and Underground Storage Tank Sites, to working with the Environmental Protection Agency regarding Superfund Sites and chemical releases, and representing clients in Civil Litigation brought by Regulatory Agencies and Private Citizens.

References:

SWRCB, 1,2,3-Trichloropropane,
https://www.waterboards.ca.gov/drinking_water/certlic/drinkingwater/123TCP.html

ATSDR, 2011. Addendum to the Toxicity Profile for 1,2,3-Trichloropane (PDF), Agency for Toxic Substances and Disease Registry, Centers for Disease Control, August 2011. Other information on 1,2,3-TCP from ATSDR is here.

IARC, 1995. 1,2,3-Trichloropropane (PDF), IARC Monographs on the Evaluation of Carcinogenic Risks to Humans, Volume 63, Dry Cleaning, Some Chlorinated Solvents, and Other Industrial Chemicals, International Agency for Research on Cancer.

NTP, 2014. 1,2,3-Trichloropropane (PDF), in Report on Carcinogens, 13th Edition; U.S. Department of Health and Human Services, Public Health Service, National Toxicology Program, October.

OEHHA, 2009. Public Health Goal for 1,2,3-Trichloropropane in Drinking Water (PDF), August 2009.

US EPA, 1997. Health Effects Advisory Summary Tables (HEAST), FY 1997 Update, US Environmental Protection Agency, Solid Waste and Emergency Response, 9200.6-303 (97-1), EPA-540-R-97-036, July 1997.

US EPA, 2009. Toxicological Review of 1,2,3-Trichloropropane (PDF) in Support of Summary Information on the Integrated Risk Information System (IRIS), US EPA. September 2009. IRIS summary is here.

US EPA, 2014. Technical Fact Sheet – 1,2,3-Trichloropropane (TCP), Office of Solid Waste and Emergency Response, EPA-505-F-14-007. January 2014.
SWRCB, 2017, Groundwater Information Sheet (PDF),
https://www.waterboards.ca.gov/gama/docs/coc_salinity.pdf

Courthouse News Service, 2017, City Wins Pollution Case, Jury Awards No Damages,
https://www.courthousenews.com/city-wins-pollution-case-jury-awards-no-damages/

SBDDW-17-001 1,2,3-Trichloropropane MCL
Information and Documentation Pertaining to This Regulatory Proposal
https://www.waterboards.ca.gov/drinking_water/certlic/drinkingwater/SBDDW-17-001_123TCP_MCL.html