Our law practice at Robins Borghei LLP focuses primarily on helping public water suppliers recover the costs of responding to groundwater contamination.\u00a0 In July 2017, the California State Water Resources Control Board, Division of Drinking Water, adopted a new, enforceable regulatory standard, called a Maximum Contaminant Level, for 1,2,3-trichloroporane (\u201cTCP\u201d), which the State describes as a \u201cpotent carcinogen\u201d that \u201cposes a significant carcinogenic risk when it occurs in drinking water\u201d at low levels.\u00a0 TCP has already been detected in hundreds of water wells in California, but that number is sure to grow as water systems begin regularly monitoring for this pernicious and expensive-to-treat contaminant.<\/p>\n
TCP does not occur naturally; if TCP is detected in groundwater, someone is responsible for the contamination.\u00a0 Although TCP contamination has been ass The good news for affected water suppliers, however, is that, in many cases, viable avenues to recover the costs of treating or otherwise remediating TCP from responsible parties are available.\u00a0 Founding partner Todd Robins has been representing water suppliers in TCP cost-recovery cases for over 14 years.\u00a0 The lawyers at Robins Borghei LLP have represented approximately 40 cities, water districts and water companies in this type of litigation, and are co-lead plaintiffs\u2019 counsel in the coordinated TCP litigation proceeding in California. \u00a0No law firm in the country has more experience, and has had more success, handling TCP cost-recovery litigation than Robins Borghei LLP<\/span>.\u00a0 See below for more information regarding the characteristics, regulatory status and sources of TCP in groundwater.<\/p>\n TCP was an unnecessary impurity in soil fumigants used to control nematodes (microscopic worms that affect plant roots).\u00a0 TCP-containing fumigants were used extensively by farmers throughout California\u2019s agricultural regions in the production of multiple crops from the 1950s through D-D and Telone were liquid mixtures designed to be injected directly into the soil.\u00a0 The active ingredient, known as 1,3-dichloropropene, or 1,3-D, would volatilize into a gas, spread through the soil, and then break down into harmless byproducts after several days.\u00a0 The inactive TCP, on the other hand, was barely volatile and incredibly persistent.\u00a0 Indeed, scientific evidence has shown that, in typical groundwater conditions in California\u2019s Central Valley, TCP has a half-life of hundreds of years \u2013 one of the most persistent organic contaminants ever encountered.\u00a0\u00a0 TCP is also mobile, meaning that travels with rain and irrigation water down into aquifers.\u00a0 Evidence also demonstrates that, because TCP is heavier than water, it often penetrates into deeper aquifer zones than other agricultural contaminants.\u00a0 In short, widespread groundwater contamination was an inevitable consequence of injecting TCP into soil as a constituent of soil fumigants.<\/p>\n In addition to its unusually harmful properties as a groundwater contaminant, TCP is also highly toxic in drinking water.\u00a0 Animal studies have shown that TCP is \u201ca potent carcinogen.\u201d\u00a0 Such studies have led the International Agency for Research on Cancer to classify TCP as \u201cprobably carcinogenic to humans.\u201d\u00a0 Similarly, the National Toxicology Program classifies TCP as \u201creasonably anticipated to be a human carcinogen.\u201d\u00a0 The California Office of Environmental Health Hazard Assessment (\u201cOEHHA\u201d) summarized the animal toxicology data for TCP as follows:<\/p>\n Under California law, the first step in the regulatory process for establishing a drinking water standard is adoption of a Public Health Goal.\u00a0 A Public Health Goal is not an enforceable standard, but rather a regulatory objective that is \u201cbased exclusively on public health considerations.\u201d\u00a0 Health & Safety Code \u00a7 116365(c).\u00a0 \u201cIf the contaminant is a carcinogen . . . , the public health goal shall be set at the level that, based upon currently available data, does not pose any significant risk to health,\u201d defined as an excess cancer risk of no more than one in one million (1 x 10-6<\/sup>) based on lifetime consumption.\u00a0 Id<\/em>.\u00a0 In 2009, after an extensive peer review process, OEHHA issued a final Public Health Goal for TCP in drinking water of 0.7 parts per trillion (\u201cppt\u201d) \u2013 the second-lowest ever set for a drinking water contaminant in California.\u00a0 (See our link to the\u00a0Office of Environmental Health Hazard Assessment Final Public Health Goal Technical Support Document\u00a0at the bottom of this page.)<\/p>\n Once a Public Health Goal is set for drinking water contaminant, the State then establishes an enforceable drinking water standard, known as a Maximum Contaminant Level, or \u201cMCL.\u201d\u00a0 Under California law, an MCL \u201cshall be set at a level that is as close as feasible to the corresponding public health goal, placing primary emphasis on the protection of public health, and that, to the extent technologically and economically feasible . . . avoids any significant risk to public health.\u201d\u00a0 Health & Safety Code \u00a7 116365(a).\u00a0 An MCL is \u201cthe maximum<\/u> permissible level of a contaminant in water.\u201d\u00a0 Health & Safety Code \u00a7 116275(f) (emphasis added).\u00a0 All public water systems must comply with MCLs.<\/p>\n On July 18, 2017, the State Water Resources Control Board\u2019s Division of Drinking Water, the State agency that regulates public water systems, adopted an MCL for TCP of 5 ppt. \u00a0Because California\u2019s detection limit for reporting purposes for TCP is 5 ppt, and therefore any detectable concentration of TCP exceeds the MCL, there is no safe level of TCP in drinking water, according to California\u2019s regulations.<\/p>\n Under the new TCP standard, starting in January 2018, all public water systems in California are now required to monitor for TCP in their water sources.\u00a0 If TCP is detected above the MCL in a well, monthly sampling for six months is required to determine if the average concentration violates the MCL.\u00a0 If a well is determined to be out of compliance, the water system will be required to provide quarterly public notification or shut the non-compliant well down, pending installation of treatment.\u00a0 A single detection of TCP at a level of 50 ppt or higher (i.e., greater than 10 times the MCL) may result in immediate closure of the well.\u00a0 While California\u2019s Division of Drinking Water appears likely to give water systems \u2013 especially smaller systems in disadvantaged communities \u2013 time to implement corrective action for MCL violations, failure to comply with the MCL can eventually lead to fines and other consequences.<\/p>\n TCP is expensive to remove from drinking water supplies.\u00a0 As part of its MCL regulation for TCP, California has designated Granular Activated Carbon treatment as the \u201cbest available technology\u201d for TCP removal.\u00a0 Carbon treatment involves the installation of several large vessels containing thousand More than 40 water supplies in California have filed suit against Shell and Dow seeking to recover the costs of treating or otherwise remediating TCP contamination in their groundwater supplies.\u00a0 All of these TCP lawsuits have been \u201ccoordinated\u201d before a single judge in San Bernardino Superior Court.<\/p>\n Robins Borghei LLP founding partner Todd Robins took on his first TCP cost-recovery case against Shell and Dow in 2004 on behalf of a water company that provides drinking water to the Ka\u2019anapali Resort in Maui, Hawaii.\u00a0 He has been handling TCP lawsuits on behalf of California water suppliers since 2005, including the following:<\/p>\n![\"TCP](\"https:\/\/rbwaterlaw.com\/wp-content\/uploads\/2016\/05\/TCP-map.jpg\")
<\/a>ociated with certain industrial hazardous waste sites, most of the TCP contamination in California\u2019s groundwater was caused by soil fumigants manufactured by Shell Oil Company (\u201cShell\u201d) and The Dow Chemical Company (\u201cDow\u201d) that were used widely by farmers from the 1950s through 1980s.. Tragically, the active ingredient in these fumigants broke down in the soil into harmless byproducts in a matter of days, but the TCP in those products, which was an unnecessary impurity and provided no benefit to the farmers who used them, will remain in the ground for many years to come.<\/p>\nThe\u00a0Products<\/h4>\n
<\/a> the 1980s.\u00a0 In California, these fumigants, known as D-D and Telone (and later, Telone II) were among the most widely used pesticides in the history of the State.\u00a0 TCP accounted for approximately 1% of D-D, which was manufactured by Shell, and approximately 0.1 to 0.4% of Telone and Telone II, which were manufactured by Dow.\u00a0 Shell took its p<\/a>roduct off the market in 1984.\u00a0 Dow reformulated its Telone product in the mid-1970s and rebranded it \u201cTelone II.\u201d\u00a0 Since the 1990s, Dow has sold a virtually TCP-free version Telone II.<\/p>\nTCP\u2019s Hazardous Characteristics<\/h4>\n
\n
\n
Regulatory Status of TCP<\/h4>\n
TCP Treatment<\/h4>\n
<\/a>s of pounds of activated carbon.\u00a0 As the water passes through the vessels, the TCP and other organic matter attach to the surface of the carbon granules and are removed from the water.\u00a0 Eventually, the carbon becomes saturated and needs to be changed out before TCP breaks through into the treated water.\u00a0 TCP tends to break through more quickly than other organic contaminants.\u00a0 This is the primary reason why Granular Activated Carbon treatment involves significant operation and maintenance costs over time.<\/p>\nTCP Litigation<\/h4>\n