For water systems that discover man-made chemical contaminants in their water supply, litigation against the manufacturer of the contaminant may be the best option for recovering clean-up costs. Holding manufacturers accountable for the cost of cleaning up contamination caused by their products is a more just and fair approach than asking ratepayers or taxpayers to do so.
Finding out how a specific product from a specific manufacturer got into a water system is not a straightforward or simple task. However, water systems can rely on law firms with experience in water contamination cases to help identify the likely sources — even if the initial contamination occurred well in the past.
Starting the investigation
One of the fundamental requirements of all tort litigation is showing that the defendant was the cause of the harm to the plaintiff.
This can be relatively simple when there are witnesses or video surveillance of a conspicuous harmful action, like a car accident. In water contamination cases, this is much more difficult because the path from the contaminating activity to the contaminated water system runs through the motion of chemicals that are invisible to the naked eye through soil or waterways. However, by working with specialists in environmental law, hydrodynamics, and contaminant chemistry, and sometimes even historians on former industrial and agricultural practices, water systems can often zero in on potential contaminant sources.
Water systems looking to discover their contamination sources can work under the guidance of an experienced plaintiff’s attorney to look for clues in the following three places.
Clue one: testing data may show the “when” and “where”
The U.S. EPA sets legal limits on more than 90 contaminants in drinking water. These limits reflect the level that protects human health and reflect what water systems can achieve using the best available technology. Some states also have their own limits on additional contaminants.
Regularly testing for certain contaminants can provide an important clue to the source, because it provides a time frame as to when and where the contaminant has appeared in water sources over time. This information can be used in the next important part of this investigation: looking to where those sources are located in relation to each other, using GPS coordinates or even street addresses. This data is used by experienced lawyers and experts working with them as they identify the source of the contamination in a water system’s wells or intakes.
Clue two: contaminant chemistry and uses
Some basic research on a contaminant will reveal what its uses are and therefore where it may have come from. Is it an agricultural fumigant byproduct, like 1,2,3-Trichloropropane (TCP)? Is it a known gasoline additive, like MTBE? Is it a manufacturing byproduct of a certain industry? EPA’s National Primary Drinking Water Regulations page lists contaminants with a maximum contaminant level (MCL) according to category (microorganism, organic chemical, inorganic chemical, disinfectant, etc.) along with their known health effects and typical industrial or agricultural uses or other sources. This page includes only contaminants with an MCL from the EPA; there are additional contaminants that water systems may test for as determined by state regulations, who often also provide similar information about the likely sources of these contaminants.
Additional important information about the contaminant in question is its ability to degrade in the environment. Certain contaminants can biodegrade more readily than other contaminants such as per- and polyfluoroalkyl substances (PFAS). A contaminant’s degree of degradation will impact how far it might have traveled to the source of water and may suggest a window of time in which it was released into the environment. To that end, a skilled scientist in contaminant chemistry is an important member of the team of experts that an experienced law firm will bring in to help identify the source of water contamination for holding contaminators accountable.
Clue three: which way is up?
Understanding which direction is “upstream”— usually referred to by hydrologists as “upgradient”— of the location where the contaminant has been detected is also crucial to identifying the source. This can sometimes be very difficult, or even counterintuitive. We all know that water runs downhill, but there are hydrologic factors that can alter this general trend (for example, a well pump can pull nearby contaminants toward it from all directions, including from downgradient). Understanding groundwater flow, in particular, requires a thorough comprehension of the geology around the water system, underground gradients and often data points from nearby wells.
A qualified hydrologist or hydrogeologist will examine dozens of factors to understand the actual source of contaminated water. Variables that impact surface and groundwater flow include well pumping, interaction of surface and groundwater aquifers, rainfall, and historic and current land uses, among others.
A quick word on PFAS
Earlier this year, the federal government proposed the first national drinking water standard for six PFAS. If finalized, the proposed regulation will add these chemicals to the list of contaminants with legal limits and require public water system testing.
However, when it comes to PFAS, there is no mystery: the only producers of PFAS in the U.S. were 3M, which began making PFAS decades ago, and a small group of other manufacturers. Regardless of how the PFAS made it into the water supply, product liability law allows drinking water utilities to hold the original manufacturers of the PFAS responsible, rather than the local airport or other businesses who may have been using products with PFAS while unaware of the risks they pose to the environment.
Putting the clues together
Once a team of experts understands the contamination sites and when the contaminant was first detected, the contaminant’s typical uses and basic chemistry, and a general idea of flow into the water supply, it is time to see what industrial, agricultural or other significant operations exist (or previously existed) in the target area.
Satellite images on Google Maps can reveal large industrial and agricultural sites. Many states have additional resources for identifying potential industrial sources. For example, California’s State Water Resource Control Board maintains the Geotracker website that has a mapping feature and identifies industries and clean-up actions, along with the chemicals-of-concern at those sites.
Often, an expert needs to research the past uses of the land in the target area, especially for contaminants like 1,2-Dibromo-3-chloropropane (DBCP) and TCP, which are slow to degrade in groundwater. Looking into past uses of land usually involves some form of aerial photography. Using both resources online, as well as collections of aerial photographs from special collections around the county, an aerial expert will get snapshots in time, identifying when and where fields, factories, and other sites existed where contaminants may have been used, stored, or disposed. Good aerial experts can even identify the types of crops grown over time, which is important since some chemicals were typically used on particular crops.
Further evidence from historical experts may be needed as well. They often spend time digging through archives and records in local historical societies or special collections in local libraries to find evidence of where contaminating products were used, stored, or sold.
Use the clues to build a case
Water systems that discover contaminants in their supply should be concerned, especially when the contamination requires adding expensive treatment plants or other costly measures. Providing safe drinking water to customers is job number one for public water systems, so ignoring the contamination is not an option.
The question is: Who will pay for the clean-up? Some water systems may reallocate capital budgets or request funds from local, state or federal sources, but some may have no other choice but to raise rates, ultimately putting the burden on customers.
But there’s often a better way: holding accountable the corporations that created the contamination in the first place. Getting legal assistance to determine where the contamination may be coming from is an important step toward using the legal system to get additional resources, in the form of settlements or legal judgments, to remove the contaminant from water supplies. Water contamination legal experts can assist utilities at any step of the way to build a case, from initial evidence development all the way through settlement or trial.
Case study: Pomona, California, wins perchlorate contamination suit
In the late 2000s, the City of Pomona, California, discovered perchlorate contamination that exceeded the state’s limit in 14 of its wells used to supply drinking water to city residents. Above certain levels, perchlorate can interfere with the functioning of the thyroid gland by inhibiting the synthesis of thyroid hormones, which play an important role in the regulation of metabolic processes that are vital to fetuses and infants, especially for brain development.
In response to this contamination, the city spent millions of dollars to design and build a plant specifically for removing perchlorate from its water sources and was facing tens of millions of dollars more to operate and maintain the plant as perchlorate persists.
Looking to recover these costs, Pomona turned to SL Environmental Law Group, PC to identify the company responsible for the contamination. Using a team of experts, Pomona showed that the major source of the contamination was fertilizer products imported from South America, mostly from the 1930s through the 1950s, that had been used on citrus groves near the city. This fertilizer, mined from the Atacama Desert in Chile, was contaminated with perchlorate. The team included an expert on the isotopic characteristics of perchlorate, a hydrogeologist and team, an expert on aerial identification of crops and a history professor, among others.
Each expert uncovered the evidence that fertilizer from a Chilean company was the source of perchlorate in Pomona’s wells and not — as the defendants argued — from tile manufacturers, glass blowing facilities, fireworks, road flares or model rockets. Ultimately, the jury sided with Pomona and found the evidence showed that the source of the contamination was the defendant’s fertilizer/ The court held the fertilizer company responsible for the costs of treating the perchlorate in Pomona’s wells, awarding the it more than $48 million in damages.