www.ca-nv-awwa.org 21
Legal Drivers for Holding
Polluters Accountable
For impacted water systems through-out
California but especially in the San
Joaquin Valley, bringing water sources
into compliance with state standards for
TCP levels is challenging. In some cases,
expensive water treatment is essential but
finding the funds to pay for it is hard, es-pecially
for smaller or economically dis-advantaged
water systems. For some cash-strapped
small water systems, the risk of
insolvency rises unless outside funding
can be secured.
Product liability law can help bridge
the gap. This area of the law protects con-sumers
when products do not perform
the way they expected or when the risk of
using the products outweighs their bene-fits.
Since 2005, dozens of large and small
water providers and others have brought
product liability lawsuits against Shell Oil
and Dow Chemical Company to recov-er
the costs of removing TCP from their
drinking water. In other words, through
legal action, water suppliers have been re-imbursed
for costs related to the cleanup
of TCP contamination from the products’
manufacturers. Understanding why re-quires
a little bit of background.
A History of
Misleading Farmers
Starting in the 1940s and continu-ing
for decades, chemical companies like
Shell and Dow sold agricultural pesticides
to farmers working the soil throughout
the state of California. The pesticides had
different names (Shell’s version was called
D-D, and Dow’s was called Telone) but
both contained TCP — not as an active
ingredient that helped to kill pests but as
an impurity that the companies chose not
to remove. The manmade chemical TCP
does not bind to soil or easily break down.
Instead, it leaches into groundwater. Ev-idence
shows that the companies knew
TCP would enter groundwater supplies
and contaminate them, but the manufac-turers
never shared this information
with the farmers.
The companies stopped making
soil fumigants that included TCP in the
1980s, but these products left a legacy of
contaminated water in the heavily agri-cultural
California counties of Fresno, Kern
and Tulare, among others. TCP ground-water
contamination is particularly wide-spread
in California (and Hawaii) as the re-sult
of the heavy use of these contaminants
and the sandy local soil that absorbed and
held the contaminant.
Both California and the International
Agency for Research on Cancer have add-ed
TCP to their lists of chemicals known to
cause cancer. Because of its extreme toxic-ity
even at low levels, in 2009, California’s
Office of Environmental Health Hazard
Assessment adopted one of the most strin-gent
public health goals for a drinking
water contaminant (TCP) ever established
in the state. Since 2018, California water
agencies have been required to comply
with quarterly testing mandates and a
maximum contamination level (MCL) of
five parts per trillion for TCP.
Seeking Justice
via the Courts
Throughout California and, indeed,
the United States, municipalities and oth-er
water systems are fighting back against
the chemical companies whose products
contaminated their water. Their argument
is simple: polluters should pay for clean-ing
up the messes they made.
The pathways to taking legal action
against these polluters can vary. Most or-ganizations
start by looking for attorneys
who specialize in complex environmen-tal
law. The “polluter pays” principle has
been a key concept within this field for de-cades
as a means for demanding that pol-luters,
not innocent community members,
bear the costs of their pollution.
The good news is that some environ-mental
law firms, such as SL Environmen-tal
Law Group, take on cases like these on
a contingency basis. No money for attor-ney
fees is required upfront. Instead, the
attorneys take their fee and related costs
from a pre-negotiated percentage of the
settlement or judgment.
Organizations should review quali-fications
and experience before selecting
and entering into a contract with a law
firm. Some factors to consider include:
• Specific knowledge of water utilities
and water contamination law.
• Track record of success in similar
cases.
• Licensed to practice law in your state.
With these factors in mind, water sys-tems,
cities and other water suppliers can
find a legal partner willing and able to
help them recoup groundwater treatment
costs and restore safe and reliable water
supplies to the communities they serve.
Time is Ticking
For many communities coping with
TCP-contaminated groundwater, the da-
mages to their water supplies happened
over many years, often decades. The solu-tions
to these problems take time to put
into place as well.
Because of the similarity of the cases,
most TCP litigation in California is con-solidated
before a single judge in San Ber-nardino
Superior Court into a coordinated
proceeding. Coordination like this is com-mon
but can also result in some delays as
litigants have to wait their turn in court.
Some attorneys have had success in bring-ing
the cases to federal court, resulting in
a speedier resolution. Organizations will
want to discuss their options and timing
with their attorney.
In some instances, water systems and
others may be subject to a three-year stat-ute
of limitations on product liability cases.
This means that cases brought three years
after some action was taken in response to
TCP contamination may risk dismissal
by the court. Organizations contem-plating
legal action should be aware of
this deadline and should act quickly to
get their cases filed, if necessary.