Kern water district gets $230 million to settle contamination lawsuit
The Arvin-Edison Water Storage District accepted $230 million to settle its lawsuit against Dow Chemical and Shell Oil for allegedly contaminating its groundwater with 1,2,3-trichloropropane (TCP) and jeopardizing its lucrative groundwater banking program with a southern California drinking water agency.
This is the first of several Kern County groundwater banking TCP lawsuits to conclude.
Dow and Shell are also being sued by the Semitropic Water Storage District and North Kern Water Storage District. Two other lawsuits by Rosedale-Rio Bravo Water Storage District and Kern Delta Water District are “stayed,” or paused, pending negotiations.
Very much on the edge: Dow and Shell demand notice of public document release
A curious part of the settlement agreement between Arvin-Edison Water Storage District and Dow Chemical and Shell Oil comes awfully close to messing with how a public agency responds to document requests under the California Public Records Act (PRA).
A section of the settlement titled “Confidentiality” acknowledges that, as a public agency, Arvin-Edison is required to disclose the settlement agreement.
However, it requires Arvin-Edison to provide written notice to Dow’s and Shell’s attorneys at least 10 days prior to releasing the document. The notice is required to include the following information: The date Arvin-Edison intends to release the document; why it’s being released; and to whom it is being released.
“It is very much on the edge and very troubling that a public agency would make this agreement,” said David Loy, an attorney for the First Amendment Coalition. “This is absolutely a disclosable document and Dow and Shell have no veto, or right to object to disclosure. So, I see no earthly reason they would need 10 days to review a request.”
SJV Water sent emails to Dow and Shell asking why they demanded to review PRA requests prior to Arvin-Edison releasing the settlement. Shell declined to comment and Dow did not respond.
The review requirement doesn’t violate the letter of the law under the PRA, Loy said, but it could if it extended deadlines set out in the Public Records law.
The Public Records Act allows an agency up to 10 days from receipt of a request to find the requested documents, determine if they are disclosable, redact portions that may not be disclosable, etc.
Loy said if this “superfluous” review requirement by Dow and Shell slowed that timeline, that could be a violation. But otherwise, “I can’t categorically say it’s illegal,” Loy said.
SJV Water requested the settlement on Feb. 23 and received it seven business days later.
Still, “I don’t love it,” Loy said.
The Arvin-Edison settlement appears to be the second-highest, so far, among a glut of TCP contamination cases in California. The City of Fresno received a settlement of $233 million in 2024.
In exchange for the $230 million, Arvin-Edison agreed to release its legal claims against Dow and Shell, which admitted no wrongdoing. Shell declined to comment and Dow did not respond to questions from SJV Water.
Stunning as the settlement amount seems, it is less than half of what Arvin-Edison said it would cost to clean up the contamination, according to a 2021 feasibility study. That study showed clearing the TCP using granulated carbon would cost a minimum of $465 million.
General Manager Jeevan Muhar said Arvin-Edison hasn’t begun those clean up projects as it is in consultation with Metropolitan Water District of Southern California (MWD), the district’s primary banking partner.
Meanwhile, MWD’s deliveries into Arvin-Edison remain suspended.
It ceased banking water in Arvin-Edison beginning in 2018 drought because of TCP. The district still has a little more than 100,000 acre feet stored in Arvin-Edison, according to MWD spokeswoman Rebecca Kimitch.
Suspension of the MWD banking program has meant a significant loss for Arvin-Edison. MWD pays the district fees to bank water there and is obliged to leave 10% of its banked supplies in the ground.
Other Kern County groundwater banks operate in a similar manner, with some percentage of water left behind. Because of that, water banking had become a standard drought planning tool for both southern California communities and Kern water districts.
And the TCP issue has arisen as valley water districts are scrambling to sock away as much recharged water as possible in order to comply with the Sustainable Groundwater Management Act (SGMA), which mandates local agencies must bring aquifers into balance by 2040.
Drinking water systems began dealing with TCP in 2017 when the state deemed it a carcinogen and set the maximum level of TCP for drinking water at five parts per trillion — the equivalent of five grains of sand in an Olympic-sized swimming pool.
Irrigation water doesn’t have the same standards except when it comes in contact with municipal water, such as through the California Aqueduct.
TCP is a chemical that was included in a nematode fumigant made by Dow and Shell and applied liberally to the Central Valley’s vast farmland from the 1950s through the 1980s.
