1,2,3-TCP in Drinking Water: Strategies for Groundwater Remediation

In today’s rapidly changing regulatory environment, many water utilities are encountering new challenges as they strive to maintain compliance despite limited budgets and resources. In states such as California, where the contaminant 1,2,3-trichloropropane (TCP) is strictly regulated in drinking water supplies, affected water providers must look to new solutions to cover the cost of groundwater cleanup. When evaluating funding options, it is important to explore all available options to seek the best possible outcomes for utilities and the communities they serve. For water systems dealing with TCP contamination, cost recovery litigation can be an effective funding strategy. Many utilities have successfully used the legal process to hold polluting manufacturers, not ratepayers, accountable.

In this blog, we will explain the history and sources of 1,2,3-TCP drinking water contaminants, discuss state regulations, and explore the funding options available to help utilities cover the necessary cleanup costs.

Sources of Water Contamination from 1,2,3-TCP

Starting in the 1940s and continuing for decades, chemical companies like Shell Oil and Dow Chemical Company sold agricultural pesticides, known as soil fumigants, to farmers. These fumigants had different names, the most common being Shell’s D-D and Dow’s Telone. But they had one thing in common: They all contained TCP — not as an active ingredient that helped to kill pests, but as an impurity, a byproduct left over from the manufacturing process that the companies chose not to remove. TCP does not bind to soil or break down as easily other chemicals in the soil fumigants. Instead, it leaches through the soil, leading to groundwater contamination. Evidence shows that Shell and Dow knew the TCP would enter groundwater supplies and contaminate them, but the manufacturers never shared this information with the farmers. They continued to sell the product for years until the companies ceased making soil fumigants that included TCP in the 1980s. What was left was a legacy of TCP-contaminated groundwater.

Which U.S. States Have Drinking Water Standards for TCP?

Several U.S. states currently enforce regulations that limit the concentration of 1,2,3-TCP allowed in drinking water. Hawaii was the first state to create a Maximum Contaminant Level (MCL) for the contaminant, setting a limit of 0.6 parts per billion (ppb). New Jersey now has an even more stringent MCL of 0.03 ppb.

The State of California has also begun regulating 1,2,3-TCP drinking water contaminants. In 2018, California established an MCL of five parts per trillion (ppt) for the chemical. Since then, water agencies throughout the state have been subject to quarterly water quality testing mandates to achieve compliance. Meeting this strict standard has been difficult for utilities, especially those serving agricultural areas with a history of TCP-laden fumigant use.

Is 1,2,3-TCP Regulated at the Federal Level?

While the United States Environmental Protection Agency (EPA) has not yet set enforceable drinking water quality standards for 1,2,3-TCP, the agency has published health advisories for the chemical. The 1-day and 10-day health advisory levels, set at 0.6 milligrams per liter (mg/L) in drinking water for a 10-kilogram (kg) child, indicate the concentration of drinking water contaminants at which noncancer adverse health effects are not anticipated to occur.

The establishment of federal health advisories shows that the EPA is aware of the dangers TCP exposure presents to public health. As regulations are always subject to change, the agency may pursue the development of enforceable standards in the future.

Holding Polluters Accountable for Groundwater Contamination

Detection of this contaminant generally means that expensive granular activated carbon treatment will need to be built, or an alternative water source will need to be acquired. Unfortunately, the financial burden of managing emerging contaminants often falls upon utilities and their ratepayers. However, this does not have to be the case. More and more utility leaders are seeking funding through litigation against the manufacturers of these contaminants, holding them responsible for the cost of cleaning up pollution caused by their products.

The general concept of suing manufacturers for damages caused by their defective products is well-established. The law is clear in most states that the designer, manufacturer, or seller of a product can be held responsible for harm caused by that product. Product liability laws are in place to protect consumers from dangers, defects, or malfunctions that could harm people. Now, municipalities, water systems, and others are using these laws to fight back against the chemical companies that have profited from creating dangerous substances. Their argument is simple: Polluters should pay for cleaning up the messes they made.

SL Environmental Law Group has already helped many water systems, agribusinesses, and schools affected by TCP contamination. Over the past 5+ years, we have successfully resolved multiple lawsuits, obtaining more than $125 million in settlements to cover the cost of treatment and contamination management. SL has helped clients across California recover TCP cleanup costs, including the Sunny Slope Water Company, Golden State Water Company, and Rubidoux Community Services District.

The Path to Cost Recovery

Because each system has its own unique needs and challenges concerning drinking water contaminants, it is important for utilities to seek legal counsel for specific guidance. Most water providers, municipalities, and organizations start by looking for law firms with experience in water contamination litigation. Such firms understand the complex process of seeking to recover cleanup costs from the large corporations responsible for pollution.

The good news for systems with limited resources is that some environmental law firms take on cases like these on a contingency basis. No money for attorney fees is required up front. Instead, the attorneys take their fee and related costs from a pre-negotiated percentage of the settlement or judgment. This means that attorneys typically take cases that they believe have good merit with clear liability by an organization or person with the ability to pay a judgment or settlement.

Organizations should review qualifications 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
• A fee schedule that works within your budget

With these factors in mind, water systems, cities, and other organizations can often find a dedicated legal partner to help them recoup groundwater treatment costs and restore safe and reliable water supplies to the communities they serve.

Why Should Water Systems Act Quickly?

For many communities managing detections of 1,2,3-TCP in groundwater, the damage to their water supplies happened over many years, often decades. However, once contaminants are detected, it is important to start seeking funding solutions quickly to avoid missing out on potential opportunities. Whether water providers are applying for state grants, seeking to recover costs through the courts, or both, delayed action may limit the available options.

Lawsuits regarding water contamination can be limited by a statute of limitations, which specifies the time period during which a system needs to take action, typically from the point of detection to the filing of a lawsuit. A case filed after the statute of limitations has expired will likely be challenged by defendants and the case will be thrown out, regardless of its validity or value. Therefore, it is crucial to start considering legal options as early as possible.

Consider All Funding Options for TCP Cleanup

The cost of removing 1,2,3-TCP from groundwater sources is likely to present challenges for systems affected by these drinking water contaminants. As such, utilities will benefit from exploring all available funding options and creating a strategy to fit their unique needs. Litigation can be a very effective cost recovery method for many communities dealing with contamination and can even be combined with other strategies such as state funding for water quality issues.

Suing the manufacturers responsible for pollution helps water providers pay for critical water infrastructure facilities without passing the heavy burden on to ratepayers. The chemical companies that profited from contaminating products should bear the costs of cleanup.

With many different strategies available, water providers may have questions about their options. To learn more about potential solutions for your unique situation, start the conversation by contacting SL Environmental Law Group.