Central Valley Regional Water Board investigating Manure Pond Depth to Groundwater for Certain Dairies

This blog is re-posted from the Milk Producers Council Newsletter.  If you have any questions please contact Kevin Abernathy at the Milk Producers Council or Lee N. Smith or Craig Tristao of our office.. The Central Valley Regional Water Quality Control Board (Regional Board) officials confirmed Thursday that they are in the process of contacting about 70 dairies to investigate whether their manure retention ponds are in direct contact with groundwater. Some dairies have already reported receiving the letters, which order them to submit technical reports to help determine whether their ponds intersect the water table. Regional Board officials said the effort is focused in an area of the northern San Joaquin Valley known for historically shallow water tables, near communities like Hilmar, Turlock and Merced.  The targeted area appears to include parts of Stanislaus, Merced and San Joaquin Counties. Initial reports indicate that the Regional Board is giving dairies until July 31 to respond to their request for information determining whether the dairy’s pond intersects. The letters require affected dairies to have a licensed civil engineer or land surveyor prepare a “Groundwater Separation Study,” which would include the elevation of the land surface near the lagoon, the lowest part of the top embankment, depth of groundwater below ground surface, “highest anticipated groundwater,” and a comparison of the elevation of the bottom of the lagoon to highest anticipated groundwater. If the ponds intersect groundwater or highest anticipated groundwater, the Regional Board is asking dairies to respond by October 31 with a “remedial workplan” including a time schedule for “elimination of the threats to groundwater associated with this condition.” The October 31 deadline appears to be for submitting the plan, and the letters to not state a specific deadline for when affected dairies would have to fully implement the remedial workplan. However, they would have to propose a time schedule for doing so. Milk Producers Council  has requested additional information and is closely monitoring the situation; and will provide updates as developments warrant.

Current Agricultural Environmental Issues

 This article which ran in the Central Valley Ag Supplement of the Fresno Business Journal provides a summary of the areas of water quality and water supply issues that are the most compelling.

I.                    Basin Plans

The state Porter-Cologne Water Quality Control Act requires the adoption of water quality control plans (Basin Plans) that provide the outline for managing water pollution in California. The plans incorporate the beneficial uses of water in that basin and then provide objectives that maintain and protect these uses. Many of the State’s current policy changes are implemented through amendments of the existing Basin Plans, including the Irrigated Lands Program, the Salt and Nitrate Management Plan that was developed under the CV-Salts program, and the proposed changes to the Bay-Delta Plan.

A.     Irrigated Lands Programs (“IRLP”)

 

The state IRLP regulates commercial irrigated lands, including nurseries and managed wetlands. Options for regulatory coverage include joining a Third-Party (coalition) group or obtaining individual coverage. The coalition groups work directly with members to assist in complying with requirements that include conducting water quality monitoring and preparing and filing regional plans and reports to address water quality problems. Growers who choose to obtain individual coverage must conduct their own monitoring and reporting and work directly with the Central Valley Water Board to address water quality problems. The coalitions are generally subject to adopted orders for the relevant Basins.

 

B.     CV Salts

A coalition of agriculture, cities, industry, and regulatory agencies worked for a number of years developing a plan for managing salts and nutrients. The Central Valley Salinity Alternatives for Long-Term Sustainability initiative (CV-SALTS) was initiated in 2006 to develop a management plan. This plan requires amendments to the Basin Plans for the Sacramento River and San Joaquin River Basins and the Tulare Lake Basin. The focal point for the amendments is the Central Valley-wide Salt and Nitrate Management Plan (SNMP). The SNMP provides a framework for managing salt and nitrates in the Central Valley and identified 11 proposed strategies, policies, policy changes or clarifications to the Basin Plans to facilitate the implementation of the proposed strategies and policies contained in the SNMP.  These amendments establish a three phase program that interfaces with the IRLP and includes permitting, further studies and provides specific recommendations for the control and permitting of salt discharges to surface and groundwater and of nitrate discharges to groundwater.

C.     Bay-Delta Plan

The State Water Board is considering the adoption of proposed amendments to the Water Quality Control Plan for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (the “Bay-Delta Plan”). The proposed amendments include new and revised flow objectives for the Lower San Joaquin River and its tributaries, the Stanislaus, Tuolumne, and Merced rivers, for the “reasonable protection” of fish and wildlife and beneficial uses and revised salinity water quality objectives for the southern Delta agricultural beneficial uses, as well as a program of implementation for these objectives. The current plan calls for 40 percent of the flow to be allowed to flow downstream unimpaired. It has been estimated that in a normal year, this would take 290,000 acre-feet of water from farms and cities, which is about 14 percent of the total amount they currently receive. The impact would be greater in a drought year in such conditions farms and cities could lose an estimated 673,000 acre-feet. Similar amendments will be proposed for the Sacramento River system as well.  It is believed that in addition to losses in water use from surface sources, the reduction could impact groundwater supplies as well as the recharge that could affect sustainable plans under the Sustainable Groundwater Management Act discussed below.

2. Sustainable Groundwater Management Act (SGMA)

On Sept. 16, 2014, Governor Jerry Brown signed into law a three-bill legislative package, composed of AB 1739 (Dickinson), SB 1168 (Pavley), and SB 1319 (Pavley), collectively known as the Sustainable Groundwater Management Act (SGMA). Under this statute, groundwater users in basins starting with those that are prioritized based on their level of overdraw, must organize into groups that will in turn develop a plan to balance the groundwater resources in that basin; the plans are due in January 2020.  This statute will affect the amount of water available to specific users creating effects on the operations and transactions involving all aspects of agriculture in the Valley. It is predicted that a considerable amount of land could be required to be fallowed under this statute to meet the requirements for a balanced groundwater system.

3.   1,2,3,-Trichloropropane (1,2,3 - TCP)

On Dec. 14, 2017, the California Water Resources Control Board -Division of Drinking Water adopted a regulation promulgating an maximum concentration limit (MCL) for 1,2,3 – TCP at the low level of 0.000005 milligrams per liter (5 parts per trillion). 1,2,3-TCP data has been compiled which shows statewide that 388 drinking water sources exceeded the 1,2,3-TCP MCL during the first quarter of 2018.  It is estimated that more than 2 million pounds of pesticides containing 1,2,3-dichloropropene were used in California alone in 1978. The new level of 5 parts per trillion has resulted, and will continue to result, in millions of dollars in new treatment units as well as triggering enforcement actions and lawsuits against the manufacturers and more recently claims against chemical distributors           

Third Appellate District’s “narrow” opinion could have far reaching impacts on SGMA, groundwater rights, and groundwater extractions.

In Environmental Law Foundation et al., v. State Water Resources Control Board (“Environmental Law Foundation”) the Third Appellate District of the State of California (the “Court”) held (1) the Public Trust Doctrine applies to the extraction of groundwater that adversely impacts a navigable waterway; and (2) the State Legislature did not intend to occupy the field of groundwater management by enacting the Sustainable Groundwater Management Act (“SGMA”) in 2014.

In determining that the Public Trust Doctrine applies to the extraction of navigable waterways the Court relied heavily on National Audubon Society v. Superior Court (1983) 33 Cal.3d 419 (“Audubon”). Finding Audubon to be precedent, the Court found the extraction of groundwater was akin to the appropriation of water from tributaries of navigable waterways, as was at issue in Audubon in that:

·         the diversion of the water caused the level of the lake to drop, thereby imperiling its scenic beauty and ecological value, such as groundwater extraction can cause the level of the Scott River to drop and cause the same harm;

·         the values underlying the Legislative mandate regarding the water rights system at issue in Audubon (appropriative water rights) collided with the Public Trust Doctrine, but both systems of legal thought could be implemented together, just as SGMA can be implemented together with the Public Trust Doctrine;

·         whether or not groundwater is navigable is not the issue; tributaries in Audubon were not navigable water ways, the issue is whether the conduct at issue, diversion or extraction, will adversely impact a public trust resource such as a navigable waterway.

In determining that SGMA does not occupy the filed of groundwater management such that the County and Board do not have fiduciary duties under the Public Trust Doctrine with respect to the extraction of groundwater, the Court, again relying heavily on Audubon, found:

·         just as there was no incongruity between the appropriative water rights system and the Public Trust Doctrine in Audubon, there is no incongruity between SGMA and the Public Trust Doctrine;

·         SGMA, like the appropriative water rights system, can be harmonized with the Public Trust Doctrine.

Moreover, the Court found no evidence of legislative intent that SGMA was to replace the Public Trust Doctrine. Instead the Court found that the provisions of SGMA:

·         reflect a legislative desire not to interfere with existing law (such as the common law Public Trust Doctrine);

·         SGMA is not as comprehensive as the appropriative water rights system in place, which Audubon found did not eradicate Public Trust Doctrine considerations;

·         do not subject all groundwater basins to its regulation, such as adjudicated basins;

·         many requirements of SGMA do not take effect for several years.

Although the Court considers its decision narrow because it addresses a navigable stream system which includes interconnected groundwater basins, the decision lays the foundation for additional litigation. A person who feels that a Groundwater Sustainability Agency ("GSA") is not adequately taking the environment into account in its Groundwater Sustainability Plans ("GSP") can rely on this case to initiate costly litigation and argue the groundwater extractions to be managed impact a public trust resource: a bird sanctuary, wildlife preserve, or the surface levels of a navigable waterway; and attempt to have a Court order more stringent restrictions on groundwater extraction than would have otherwise been set forth in the GSP.

Actions for TCP Contamination May be Affected by A Recent Jury Verdict Concerning Sodium Nitrate.

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:

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