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January 24, 2013
Presented by Alfred Smith, Partner
CLE InternationalColorado River Conference
Perchlorate Update
History of Basin Contamination1979 – VOC contamination
discovered1983 – Basin declared superfund site1994 – R.O.D. issuedAdding perchlorate and NDMA to the
mix–1997 testing–No ready treatment solution–Water supply crisis
3
How Widespread is Perchlorate in U.S.?Surface and Drinking Water Occurrences
UCMR Systems Measuring for Perchlorate
4
How Widespread is Perchlorate in U.S.?Surface and Drinking Water Occurrences
The ComplaintThree Water Companies and Water
Quality Authority bring CERCLA action naming scores of defendantsAlleged waste discharge practices
contaminated groundwaterLiability under CERCLA for some
undisclosed portion of the clean up estimated between $89,000,000 and $100,000,000.
5
Approximately 19 defendants file cross-claims on water entities involved with recharging groundwater with Colorado River water
Named over three dozen partiesWater purveyors, cities, counties and
WatermasterAllegation that groundwater recharge from the
Colorado River triggers CERCLA liability6
Defendants’ Response
EPA detected perchlorate in Henderson Nevada EPA alleged that 1,000 pounds per day of
perchlorate entered Lake Mead and the Colorado River through contaminated groundwater Perchlorate linked to two manufacturing facilitiesCleanup activities underway under the
supervision of EPA and the Nevada Division of Environmental Protection
Perchlorate and the Colorado River
Water Entities’ Response
Water entities filed motions to dismiss for failing to state a claimRule 11 MotionFrivolous ClaimsNo reasonable basis in fact or law
Water Entities’ Response
Recharge does not create liability Under CERCLANot an “Arranger”Recharge is a beneficial use, not a wasteState water policy and legislation
encourage groundwater recharge and conjunctive use
Motions to Dismiss
No specific intent to dispose of a wasteBurlington Northern & Santa Fe Railway
Co., et al. v. United States, et al., 129 S.Ct. 1870 (2009)Team Enterprises, LLC v. Western
Investment Real Estate Trust, No. 10-16916 (9th Cir. July 26, 2011)
Motions To Dismiss
Judicial Immunity for Court-Appointed WatermasterRecharge Operations Conducted Pursuant
to Order of the Los Angeles Superior CourtWatermaster is not a “person” under
CERCLA
Motions To Dismiss
Court orders mandatory mediation and stayed all litigation activitiesSpecial Master AppointedMultiple settlement conferences, status
conferences and mediation
Litigation Stay
Pending Settlements in Principle ReachedConsent DecreesMotions for Good Faith Settlement
ApprovalContinuing Jurisdiction
Current Status
Contact
Alfred E. SmithPartner
Nossaman LLP777 S. Figueroa Street, 34th Floor
Los Angeles, CA 90017Phone 213 612-7800
Fax 213 [email protected]
www.nossaman.com