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CERCLA Complaint Alleges Water Entities Are Liable for Using Colorado River Water for Recharge Operation

By: Byron P. Gee
04/30/04

Several water entities have been named as third party defendants in a Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) lawsuit for the groundwater contamination found in the San Gabriel Valley near and beneath the City of South El Monte.  These third party complaints allege, among other things, that the recharge operation from the Colorado River for more than 30 years has caused or contributed to the perchlorate contamination found in the groundwater.  The third party complaints were filed by owners and operators of industrial facilities who were named as potentially responsible parties ("PRP") by the United States Environmental Protection Agency pursuant to its Unilateral Administrative Order that required these PRPs to investigate and remediate the groundwater pollution near and beneath their sites.

 

While the Colorado River has been a common source of recharge water for many decades, perchlorate was not detected in Colorado River water until 1997 by the Metropolitan Water District.  Subsequent investigations determined that the source of the perchlorate contamination was an ammonium perchlorate manufacturing facility that operated in Henderson, Nevada (near Lake Mead) from the 1950’s to the 1980’s by Kerr-McGee Corporation and American Pacific Corporation.  While several military munition manufacturers have been named as PRPs (and found liable for clean up response costs – see Castaic Lake Water Agency et al. v. Whittaker Corporation et al.),[1] this is the first time a water entity has been named as a CERCLA defendant for recharging a water basin with Colorado River water.

 

While a water entity’s recharge operation is a beneficial use of water and necessary to maintain drinking water supplies in the groundwater basins, CERCLA is a strict liability statute for which a party’s intent is not a defense to liability.  However, CERCLA may allow a party to avoid liability by taking the appropriate actions once it learns that the potential for contamination exists.  
 

For more information on CERCLA liability and its potential defenses, contact Byron Gee, Fred Fudacz, or Alfred Smith in Nossaman’s Los Angeles Office. 

Byron Gee is an attorney who specializes in environmental, water and complex commercial litigation.  He represents public and private water purveyors, major water users, corporations and public agencies on matters including environmental compliance, water rights disputes, conjunctive use, public utility regulation, groundwater management and litigation over allegedly contaminated water and soil.  He can be reached at 213.612.7843 or bgee@nossaman.com.


[1] Several Santa Clarita Water purveyors filed a CERCLA suit against Whittaker Corp. and others.  The Court found that Whittaker and the current property owner of the site are liable for clean up costs for the site.  To view the Court’s opinion, click here.

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