The city of Clovis won its more than three-month-long civil trial against the chemical manufacturing giant Shell Oil Co. over the cleanup of a toxic chemical found in drinking-water wells around the city of 108,000 people. (photo: City of Clovis Website)
California
City Wins $22 Million Against Shell Oil Over Toxic Drinking Water
By Andrea Castillo,
McClatchy
27 December 16
The
city of Clovis won its more than three-month-long civil trial against chemical
manufacturing giant Shell Oil Co. over the cleanup of a toxic chemical found in
drinking-water wells around the city of 108,000 people.
The
chemical is 1,2,3-trichloropropane, or TCP, which is a waste product from
making plastic. TCP was in farm fumigants last used in the 1980s, which were
injected into the ground to kill tiny worms called nematodes.
A jury
on Wednesday awarded the city nearly $22 million, finding that Clovis residents
were harmed by the design of the fumigant, that Shell did not prove the
benefits of its product outweighed the risks, and that those risks were known
at the time it was sold. A lawyer for the city said the verdict could increase
the likelihood that Shell will settle a similar case filed by the city of
Fresno.
Clean-water
advocates say the unregulated chemical, which has been linked to cancer and liver
and kidney damage in animals, has been in wells throughout the region for
decades. TCP is considered unsafe to drink over a lifetime at levels lower than
what can currently be detected. It was added to the state’s list of chemicals
known to cause cancer in 1999.
This
is the first time a community has won a lawsuit against a chemical company for
TCP contamination. Clovis argued in Fresno County Superior Court that Shell
acted intentionally and maliciously by including TCP in its fumigant and failing
to warn people about its risks. Shell argued that Clovis water is safe to
drink, that its product helped California agriculture and that its labels
adequately warned of risks.
TCP is
most prevalent in Valley water, especially in Fresno, Kern and Tulare counties,
but is also found elsewhere in the state, including Los Angeles County. The
Clovis case is one of at least 40 legal actions filed against Shell and Dow
Chemical Co. in California since the mid-2000s.
The
California Department of Public Health has a goal of keeping TCP to
0.7 parts per trillion, which is 1,000 times lower than the limit set for many
other chemicals. The goal is intended to limit the lifetime cancer risk to one
case in a million people.
An
effort to regulate the chemical is underway. State officials in July proposed a drinking water standard that
would require water systems to start removing TCP from tap water by 2018. The
State Water Resources Control Board proposed a limit of 5 ppt – the lowest
level detectable by certified filtration methods. The limit would pose a cancer
risk of less than 1 in 143,000 people, and filtration could cost more than $34
million annually statewide.
Clovis’
arguments
The Clovis lawsuit was
originally filed in in 2005. The city sued Shell, Dow, Occidental Petroleum
Corp. and Wilbur-Ellis Co., an agricultural products distributor. According to
the complaint, the city first detected TCP in its water supplies three years
before filing the lawsuit. The city sent out mailers after initially detecting
the contaminant. TCP is also mentioned in yearly consumer confidence reports.
Clovis
attorney David Wolfe said the city settled with Dow for $7.5 million and with
Occidental for $300,000. He said the case against Wilbur-Ellis was dismissed.
Of the total, nearly $3 million went to legal fees and other costs.
The
city sought more than $70 million in damages from Shell to treat contaminated
water, secure alternative water supplies and remove the TCP from 10 of its 40
wells. The complaint states that the chemical companies disposed of TCP by
adding it to their pesticides. It says TCP is an unnecessary ingredient that
has no effect on nematodes.
Clovis’
attorney, Duane Miller of Sacramento, said the highest amount of TCP ever
detected in the city’s wells was 32 ppt around 2002. He said the contaminant
has spread out as the city added water capacity. The city didn’t remove the
contaminated wells from use, he said, because they made up one-third of its
water supply.
The
complaint alleged that the chemical companies knew or should have known that
TCP is a hazardous waste that should be disposed of properly. Instead, the
complaint states, the companies mixed the chemical in other products to avoid
disposal costs. It goes on to say that the companies then told people to apply
products containing TCP to agricultural fields, where the companies knew or
should have known that it “would inevitably contaminate groundwater.”
The
complaint also states that the companies failed to provide sufficient warnings
about risks of groundwater contamination, and didn’t test TCP as thoroughly as
they could have “in order to avoid discovering evidence of TCP’s harmful
effects on the environment and human health.”
“It’s
not the city’s fault that TCP is in its wells, and it is the city’s
responsibility to protect its citizens,” Miller told jurors.
To
arrive at a decision, the jury was asked more than a dozen questions. They
found that the risks associated with Shell’s fumigant posed a substantial
danger to Clovis residents and that ordinary consumers would not have
recognized those risks. But the jury also found that Shell was not negligent
and that the company didn’t act with malice or fraud.
Shell’s
arguments
Clovis
argued Shell’s fumigant was the most popular on the market and contained more
TCP than Dow’s product. Shell argued farmers had many fumigant choices and that
Clovis’ science was flawed.
Shell
attorney Cal Burnton told
jurors that Clovis residents have not been harmed by the TCP in their water.
Burnton argued that TCP has never been declared a human carcinogen; scientific
studies show it caused cancer in laboratory animals including rats. So when
Miller linked TCP to cancer, Burnton said, “that’s fear-mongering.”
Burnton
said the public health goal of 0.7 ppt is a conservative factor that regulators
based on a mathematical equation rather than scientific toxicity data. He said
the amounts of TCP in Clovis’ water are too minuscule to cause harm. If Clovis’
wells were so contaminated, Burnton said, the city would have removed them from
service or labeled them as safe for non-potable use only. He said the city has
17 water treatment tanks but has never used them for TCP. Miller said those
tanks are old and would not be effective.
Burnton
argued Shell’s fumigant was not used in Clovis to the extent that Miller
claimed. And he said rates of TCP in Clovis water are decreasing.
Tracie Renfroe, another attorney for Shell,
argued that the remaining TCP in Clovis’ water is most likely from Dow’s
product because it was applied in later years – and to more acres in Clovis –
than Shell’s product. Miller said Shell’s fumigant contained substantially more
TCP than Dow’s product.
Renfroe
said the benefits of the product outweighed the risks known at the time,
otherwise the federal Environmental Protection Agency wouldn’t have approved
its use.
She
also said there was sufficient warning. The labels warned of kidney and liver
damage but not cancer because the animal studies weren’t done until 1985, she
said. Labels also didn’t warn about groundwater risks because she said no one
recognized that was possible until 1983.
“Shell
could not warn of what it did not know,” she said.
Other
cases
Miller
is also representing Fresno in its case against the chemical companies. He
represented the city of Redlands in San Bernardino County – the only other
California city to go to trial over TCP. Redlands lost its $46 million claim
against Shell in 2010.
He
said the result of Clovis’ case increases the chance that Fresno’s case could
settle. “It’s a significant verdict,” he said.
Several
other cases have settled, but most are still in process. Wolfe, the Clovis city
attorney, said the city took its case to trial because Shell wasn’t willing to
settle. He said Shell finally submitted an offer last Thursday. The City
Council contemplated the offer in a closed session on Monday. Shell could appeal
the jury’s decision. Company officials were unavailable for comment.
Todd Robins, a San Francisco attorney who
represents most of the smaller Valley communities between Manteca and Arvin,
said 30 or so are in limbo waiting for the courts to schedule them. Robins
consolidated four Fresno County cases – Del Rey, Parlier, Reedley and Kingsburg
– and may add another, which are moving toward possible resolution within the
next year. Grouping cases has helped move them quicker, he said.
He
said that in most cases, communities can’t afford to remove wells with TCP from
service. “Because we’re in a terrible drought, you can’t just walk away from a
productive well,” he said, adding that some communities have TCP in every well.
“Where communities can afford, based on their supply system, they have
minimized the use of a well, pending treatment. But often there’s not enough
water to allow that to happen.”
Robins
said TCP contamination is unique to California and Hawaii. He said the Central
Valley is like a big sandbox, so when chemicals leak into groundwater, they
linger for longer than in places with different soil composition.
A
substantial part of Shell’s defense against Clovis hinged on the fact that the
state drinking water standard for TCP has not yet been set. Had the regulation
process taken place a year ago, Robins said, “perhaps this case would not have
needed to be tried.”
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