MANAGER’S CORNER
www.ca-nv-awwa.org 37
TCP—Should You Litigate?
By Alexander Leff
IN JULY 2017, THE CALIFORNIA STATE
Water Resources Control Board (SWRCB)
adopted a Maximum Contamination Level
(MCL) of five parts per trillion (ppt) of the
man-made chemical 1,2,3-trichloropropane
(TCP). Compliance will begin in January
2018, when all community water systems
and non-transient, non-community water
systems must begin quarterly testing of their
drinking water for TCP. A water provider
will be deemed to be out of compliance if
its running annual average of four quarterly
tests equals or exceeds five ppt. A provider
with a single test above 20 ppt will be deemed
immediately out of compliance. SCWRCB
also adopted a detection limit for reporting
five ppt and declared granular activated
carbon the best available technology to
remove TCP from water.
History
TCP entered California’s groundwater
primarily through agricultural pesticides
used extensively by farmers from the
late 1940s through the 1980s to control
nematodes, microscopic worms that harm
plant roots and reduce plant growth. The
farmers were never informed that the
pesticides contained TCP as an impurity
or that using them could contaminate their
groundwater with a chemical that is harmful
to humans. Manufactured solely by Shell
(D-D) and Dow (Telone), the pesticides
were injected into the ground where they
transformed into a gas that spread outward
and downward, fumigating the soil.
Product Litigation Strategy
Employing a product litigation
strategy, more than 40 water providers
have already initiated lawsuits against
Shell and Dow to recover the costs of
removing TCP from their drinking water.
The water providers generally allege that:
1. D-D and Telone were defective prod-ucts
that caused injury to their drink-ing
water, enough to establish the com-panies’
liability. Under California law,
a product has a defect if it fails to per-form
safely when used in its intended
way, and manufacturers, distributors,
and retailers are liable if that defect
causes injury in the course of that in-tended
use.
2. The manufacturers sold a product whose
risks outweighed its utility, claims sub-stantiated
with data from the state-man-dated
test of the communities’ drinking
water. For some products, the case can
be made that the benefits of the product
outweigh the risk of negative effects. But
in this case, the benefits of the pesticides
to the farmers would have been just as
strong without the defect. TCP was an
unnecessary impurity that could have
been removed at minimal cost.
3. The products had a history of mislead-ing
labeling, withholding information
on adverse impacts. Specifically, prod-uct
labels did not disclose the presence
of TCP, which meant that farmers used
Table 1: Past and pending TCP cases.