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 (μg/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 (μg/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:
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.
SBDDW-17-001
1,2,3-Trichloropropane MCL
Information
and Documentation Pertaining to This Regulatory Proposal
