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Editor: Katharine Van Tassel
Concordia University School of Law

Friday, November 7, 2014

Guest Blogger Professor Jean Macchiaroli Eggen - Low-Level Exposures to Chemicals in Drinking Water: Are They Actionable?

Eggen_Headshot (2)A recently filed complaint in California Superior Court will likely bring renewed attention to the growing debate about low levels of chemicals in drinking water and whether and to what extent low-level exposures may be deemed injuries in tort law. In City of Hughson v. Dow Chemical Company (Case No. 14-542221) (filed Oct. 16, 2014), the City alleged that the public water supply was contaminated with 1,2,3-trichloropropane (“TCP”), a chemical byproduct of the manufacture of certain commercial products for use in agriculture and other industries. The complaint alleged that the groundwater used to supply its drinking water was contaminated with TCP generated by various companies named as defendants. EPA has not regulated TCP, though it is on the Contaminant Candidate List. The state of California has issued an advisory notification level for TCP and established a Public Health Goal for the chemical, and the State Water Resources Control Board is in the process of developing a maximum contaminant level (“MCL”) for TCP. The City’s tort action seeks, among other relief, the costs of designing, constructing, and operating treatment facilities and equipment to remove the TCP and to ensure compliance with state and federal drinking water standards. The complaint alleges that levels of TCP in the drinking water have sometimes risen above the state Public Health Goal. It does not allege that any citizens have become ill from exposure to TCP. The case raises some thorny issues:

  • Is TCP toxic? Who gets to decide – EPA, the state, or the courts?
  • Where is the injury?
  • Is there sufficient injury when a public entity decides it’s a good idea to remediate, even though the substance is not regulated as a contaminant?

As early as the Thirteenth Century environmental contamination was deemed actionable under the tort of nuisance, with the basic tort elements of injury in fact and causation essential to recovery in such cases. While courts have gone on to grant relief under other tort doctrines, including trespass, strict liability for abnormally dangerous activities, and negligence, the same basic requirements of actual injury and factual causation apply. Many cases have involved large-scale releases of hazardous substances into drinking water supplies. The more difficult cases, however, are those, like City of Hughson, involving low-level exposures to chemicals in drinking water, where courts have had to determine whether low-level exposure may constitute the requisite injury. The term “low-level exposure” has no fixed meaning. In environmental contamination cases, the term is often used to refer to exposures to water containing chemicals in amounts below regulatory safety thresholds. Among the interrelated issues in tort litigation involving low-level exposures are: 

  • Whether government standards reflect absolute safety determinations and represent a bright-line cut-off for liability for those in compliance, or whether such standards make no judgments about the safety of lesser exposures, thereby leaving complying defendants open to liability.
  • Whether the mere presence of a hazardous substance in the water constitutes a legally cognizable injury, even if no property damage or adverse health effects have occurred.
  • The difficulty measuring and quantifying exposures and risk of latent illness.
  • Whether an injury exists by virtue of plaintiff’s remediation – and expenditure of resources – deemed necessary to minimize or eliminate the contamination, even if no other harm has manifested. 

A short selection of cases illustrates the scope of these problems and the range of judicial responses.

  • In re In re Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation, 725    F.2d 65 (2d Cir. 2013). MTBE, a fuel additive in gasoline, was detected in metropolitan New York groundwater and drinking water supplies. The State had promulgated an MCL for MTBE pursuant to the federal Safe Drinking Water Act (SDWA). Although the detected levels of MTBE in the water were below the MCL, the City of New York sued numerous petroleum companies for the costs of remediation. The Second Circuit held that the City’s allegations of injury were sufficient to go to trial. Regarding the low levels of MTBE in the water supply, the court held that for an actionable injury to exist, the amount must be “more than a de minimis contamination,” but need not exceed the MCL. The Second Circuit held that the de minimis threshold was the level at which the City would reasonably determine that it was necessary to treat the water supply to maintain the public health. Thus, the factual context of the individual case was relevant to a determination of the appropriate liability threshold.
  • Gleason v. Town of Bolton, 2002 WL 1555320 (Mass. Super. Ct. May 23, 2002).       Gleason exemplifies the class of cases that view the MCL as an absolute threshold below which no injury may exist as a matter of law. Gleason also involved alleged MTBE contamination of a drinking water supply. Because the alleged contamination was below the MCL, the court held that no actionable injury existed. In this case, the public entity was the defendant, and the plaintiff a restaurant owner claiming the Town was responsible for the MTBE contamination.
  • Iberville Parish Waterworks Dist. No. 3 v. Novartis Crop Protection, Inc., 45 F. Supp. 2d 934 (S.D. Ala. 1999). This case involved an MCL for the chemical atrazine. The court held that because the public entities were in compliance with the MCL, “it cannot be said that either has suffered any actual invasion of a legally protected interest.” 

So where does that leave City of Hughson? No MCL is in place to provide a benchmark, though there are lesser measures (the advisory notification level and the Public Health Goal), which makes this case even more problematic than those mentioned above. But the essential legal issue remains the same: What rule should courts use to determine whether low-level exposures constitute actionable injuries? Should the court establish a bright-line rule, using one of the State measures? Or should the factual context drive the decision, as it did for the Second Circuit in In re MTBE? If so, what factors contribute to a determination that the chemical levels constitute more than de minimis contamination? Are the City’s costs of remediation compensable?

Jean Eggen addressed these issues in a presentation at the 21st Fall Conference (October 2013) of the ABA Section of Environment, Energy & Resources. Her article, Being Small in a Supersized World: Tackling the Problem of Low-Level Exposures in Toxic Tort Actions, was selected “Best Paper” of the conference. It has been published in Environmental Law Reporter at 44 Envtl. L. Rep. 10630 (July 2014) and is available here.

-Professor Jean Macchiaroli Eggen

https://lawprofessors.typepad.com/healthlawprof_blog/2014/11/guest-blogger-professor-jean-macchiaroli-eggen-low-level-exposures-to-chemicals-in-drinking-water-ar.html

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