Tulare Joins Multi-City Suit Against Dow, Shell

SAN FRANCISCO (CN) - The City of Tulare is the latest municipality to join the now 20-plus lawsuits filed against Dow Chemical and Shell Oil Companies, claiming the manufacturers knowingly sold fumigants consisting of toxic 1,2,3-Trichloropropane (TCP) to farmers looking to terminate a problematic species of worm.

The chemical has leached into dozens of municipal water wells, according to the Superior Court complaints.

The nematode, or roundworm, is broken into about a million different species, falling into either the "free-living' or parasitic categories. Farmers in California's 22,500-square mile Central Valley have fought the pest with various products manufactured by Dow, Shell and co-defendant Occidental Chemical Corporation since the 1940's, and extending through the 1980's.

TCP is the byproduct of certain chemical processes used to produce allyl chloride, epichlorohydrin and synthetic glycerin used in the manufacturing of commercial soil fumigant products.

"TCP has unique characteristics that cause extensive environmental contamination and a corresponding threat to the public health and welfare," the complaint states. "In particular, TCP does not readily absorb (i.e. stick) to soil particles. Rather, once it is applied, discharged, disposed of or otherwise released into or onto land, it is readily transported through the subsurface and into groundwater. In addition, TCP is known to be persistent, i.e., it does not readily biodegrade or chemically degrade naturally in the subsurface."

The toxic chemical is also very difficult and costly to remove. It's not something the people should have to pay for, said San Francisco attorney Todd Robins.

"This is a potent carcinogen and very expensive chemical to clean up," Robins told Courthouse News. "The bottom line is that the disadvantaged communities in the Central Valley should not have to choose between clean water and affordable water."

Wilbur Ellis and J.R. Simplot Companies, along with FMC Corporation are listed as "distributor" defendants since they are responsible for using products containing the toxic, yet unregulated byproduct. Robins said that even though the California Department of Public Health is developing an "enforceable maximum contaminant level (MCL), there are no safe levels for TCP.

TCP is known to cause liver and kidney damage, blood disorders and cancer in animals, according to the complaint, and is "known to the State of California to cause cancer for the purposes of the Safe Drinking Water and Toxic Enforcement Act of 1986."

Of particular consternation to plaintiffs is the fact that, "The TCP contained in soil fumigant products containing TCP served no beneficial purpose," the complaint states.

"It's the hazardous waste stream that Shell and Dow put into barrels and convinced farmers to put in the ground for them," Robins said.

The complaint also claims the companies tried to hide the presence of the toxic chemical and that the manufacturer defendants, "by agreement and/or tacit understanding among them, each knowingly pursued or took an active part in a common plan, design, and/or conspiracy to market and/or promote products they knew to be dangerous to the environment," the complaint states. "In particular, these defendants engaged in joint activity for the specific purpose of suppressing, concealing and/or minimizing information regarding the toxicity and persistence of TCP."

The plaintiffs claim strict products liability, "based on defective design" and "failure to warn," continuing nuisance, negligence and continuing trespass. They seek compensatory and exemplary damages.

The California Central Valley stretches 450 miles south of Redding to Bakersfield and is 40 to 60 miles wide, sitting between the Pacific coast mountain ranges and the Sierra Nevada and Tehachapi mountain ranges.

Todd Robins and Jed Borghei of Sher Leff LLP and J. Patrick Sullivan of Sullivan & Sullivan Law Corporation represent the plaintiff.

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