Expiration dates looming for TCP lawsuits

November 4, 2020
by Lois Henry
Lois Henry

Full disclosure

This story was written by Lois Henry, CEO/Editor of SJV Water.

Henry is also the president of Brock Mutual Water Company, which has 1,2,3-TCP in its wells above the maximum contaminant level allowed by California.

In 2016, Brock hired Attorney Todd Robins who sued Dow Chemical and Shell Oil companies on Brock’s behalf for 1,2,3-TCP contamination.

A settlement was reached in 2019.

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The clock is ticking for some water systems and well owners to file a claim if they’re considering suing Dow Chemical and Shell Oil companies for possibly tainting groundwater with a chemical known as 1,2,3-TCP.

That’s short for 1,2,3-trichloropropane. It’s a chemical that was added to a nematode fumigant made by Shell and Dow and applied liberally to Central Valley farmlands from the 1950s through the 1980s.

It’s a carcinogen so powerful even a tiny amount is too much, per the California State Water Resources Control Board Division of Drinking Water.

In 2017, the Division set the maximum contaminant level for TCP in drinking water at five parts per trillion — or five grains of sand in an Olympic sized swimming pool.

The Division initially estimated about 96 drinking water systems would be impacted, according to Adan Ortega, Executive Director of the California Association of Mutual Water Companies.

“But when they started sampling in January 2018, they immediately found more than 180 systems were impacted,” Orgeta said. “The list is even bigger now.”

In fact, the Division has identified more than 550 sources of TCP contamination of drinking water across 30 counties, according to a fact sheet on its website.

The majority of those contaminated sites are in the Central San Joaquin Valley, according to the Division’s fact sheet.

When a water system or well first goes out of compliance with the Division’s maximum contaminant level for TCP could be key for any potential lawsuits.

“These are property damage claims and in California those have a three-year statute of limitations,” explained Todd Robins, whose firm Robins Borghei, has handled dozens of TCP lawsuits. “When the statute of limitations is triggered and how it’s applied is a very flexible standard and depends on the facts of each case.”

But considering sampling and compliance orders started in 2018 — almost three years ago —  “Now is a good time to get a claim on file,” Robins said.

Most regulated community water systems in the San Joaquin Valley are aware of the legal possibilities involved with TCP, said Paul Boyer, Program Director for Community Development with Self-Help Enterprises. Self-Help is a valley-based nonprofit that works with disadvantaged communities on housing and water issues.

“The question I have is what can someone do if they’re on a private well that has TCP?” Boyer asked. “It seems like all the lawsuits are related to community water systems. But there are a lot of people on private wells with much higher levels of TCP than are reported in the regulated systems.”

Ortega, with CalMutuals, agreed.

“The bulk of those that haven’t filed (a TCP lawsuit) are single well owners, or ag operations,” Ortega said. “And there are a lot of really small systems that, for various reasons, haven’t been informed about the need to file a claim soon.”

SJV Water is an independent, nonprofit news site dedicated to covering water in the San Joaquin Valley. Get inside access to SJV Water by becoming a member.

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