The city of Fresno in 2007 filed a lawsuit against several large oil and chemical companies alleging that their products were responsible for contaminating water wells with the toxic chemical TCP.
This week, the city announced that Shell USA, Dow Chemical and other companies have agreed to settle the lawsuit and collectively pay $230 million to Fresno, a payout that will be used to clean up or replace tainted water wells over the next 10 years.
The parties to the lawsuit signed off last October and November on the agreement, which was announced this week by City Attorney Andrew Janz. No explanation was provided on why the settlement was not announced by the city until Thursday.
The lawsuit, filed in San Francisco in March 2007, alleged that the companies knew that fumigant pesticides they marketed to agriculture contained TCP, or 1,2,3-trichloropropane, a chemical that “even at extremely low concentrations … renders drinking water unfit for purveying to the public, poses significant threats to public health, and creates an excessive risk of cancer when humans are exposed.”
The chemicals were used to combat nematodes, tiny worms in the soil that attack plant roots. The lawsuit alleged that the companies not only failed to warn users about the risks of the fumigants containing TCP, but also “actively concealed the fact that their product(s) contained TCP.”
A statement from the Fresno City Attorney’s Office described the $230 million agreement as “the largest known settlement of its kind in the country for this type of environmental claim.” The settlement states that the city will drop its lawsuit over contamination in 36 wells across Fresno. The city, however, reserves the right to bring more legal action for additional wells that may fall out of compliance with contamination standards for TCP in the future.
“This historic settlement now ensures the city will be able to return the contaminated wells back into service,” Janz said in the statement.
Shell and Dow have denied responsibility for any TCP contamination alleged in the lawsuit. Under the terms of the settlement, the city and the companies agree that the $230 million payout “is not an admission of liability” or an admission that the allegations in the lawsuit are true.
The settlement also includes other defendants named in the 2007 lawsuit: Occidental Chemical Company, Occidental Chemical Corporation, Occidental Petroleum Corporation, Wilbur-Ellis Company, and Nutrien Ag Solutions Inc.
The agreement indicates that the money would be paid within 60 days after the city and the chemical companies signed off on the agreement, and no later than Jan. 20, 2024. City Manager Georgeanne White signed the settlement on Oct. 30. Shell USA and Nutrien Ag signed off on Nov. 2, while Wilbur Ellis signed on Nov. 6. Occidental VPs signed on Nov. 10 and Nov. 16, and Dow Chemical was the last to sign the agreement on Nov. 29.
The city reached a separate $2 million settlement in March 2022 with another defendant, FMC Corporation, Janz said.
What is TCP?
The California Water Boards describes TCP as “a man-made chemical, typically found at industrial or hazardous waste sites (and) has been used as a solvent and as a cleaning and degreasing agent.” The agency said the chemical can also result from the production of soil fumigants.
TCP can filter through the soil into the water table, “slowly dissolving and being transported by groundwater” where it becomes “a persistent contaminant in groundwater,” the agency added. The U.S. Environmental Protection Agency has classified TCP as a likely cancer-causing agent for humans.
Among TCP’s health effects, according to the California Water Boards, are:
-
Irritation and burning of the skin and eyes through physical contact, and “breathing TCP can irritate the nose, throat and lungs, cause headaches, and affect concentration, memory, and muscle coordination.”
-
Animal studies indicated that “long-term exposure to TCP may cause liver and kidney damage, reduced body weight and increased incidence of tumors in numerous organs.”
-
“TCP has been shown to cause cancer in animals and is recognized by the State of California as a human carcinogen. For purposes of the Safe Drinking Water and Toxic Enforcement Act of 1986 … TCP was added to the list of carcinogens in 1992”
How will the money be used?
The settlement indicates that the city will use the money to install filtration systems of granular activated carbon or other state-approved treatment on at least 23 of the 36 contaminated wells.
Additionally, the city agrees that if it develops a replacement well within 500 feet of a well that has been abandoned because of contamination, it will do its best to move treatment equipment from the old well to the new well if it is equipped for TCP treatment.
None of the affected wells specified in the settlement is being used to supply water for the city of Fresno; they are all out of service.
Fresno’s Public Utilities Department reports that the city operates about 260 wells that draw water from underground. Fresno also receives surface water via canal from either Millerton Lake or Pine Flat Reservoir which is treated at three treatment plants designed to ensure the water meets drinking water standards.
Janz thanked the city’s legal team headed by Mike Axline of the Sacramento law firm Miller Axline & Sawyer for his work on the case since the lawsuit was filed. He also recognized the city’s Department of Public Utilities and its director Brock Buche, “who were instrumental in getting this deal done.”
