County Tab With One Perchlorate Law Firm Up To $1.87 Million

The county is increasing by another $350,000 the $1.52 million it has already paid the law firm of Gallagher & Gallagher for assistance in staving off lawsuits relating to water contamination in northern Rialto.
The board of supervisors authorized increasing its tab with Gallagher & Gallagher by $350,000 to an amount presently authorized not to exceed $1,870,000, to provide legal services to the county related to the former Broco facility closure at the Mid Valley Sanitary Landfill and other specific perchlorate groundwater related actions.
In the late 1990s, a plume of contaminants containing perchlorate was found to be migrating through the local water table
It is believed that five corporate entities – Pyro Spectaculars, Ken Thompson Inc., Chung Ming Wong, BF Goodrich, and Emhart Industries – were engaged in manufacturing activities that resulted in the accumulation and release of the perchlorate.
Water agency officials, state officials and federal officials believe the county of San Bernardino may have engaged in activity that exacerbated the perchlorate problem.
The county runs the Mid-Valley Landfill in north Rialto.
Officials with the Rialto-based West Valley Water District and their lawyers have alleged that San Bernardino County razed and buried a haz-ardous waste-disposal facility at the site, an act those officials maintain was not only illegal but has worsened the contamination of the groundwater below Rialto.
Broco Inc. maintained the hazardous-waste disposal operation in northern Rialto from the mid-1960s until the late 1980s. The county purchased the property in 1994 and used it in the expansion of the Mid-Valley Sanitary Landfill.
According to attorney Barry Groveman, who represents the West Valley Water District, it appears the county simply knocked the hazardous waste facility down and spread the debris around before burying it. That action was against the law, Groveman said.
Groveman said the county was in violation of state hazardous waste handling regulations and the federal Resource Conservation and Re-covery Act.
Burying hazardous waste and storing it without a permit is illegal.
In the area around the Broco site, Pyro Spectaculars, Ken Thompson Inc., Chung Ming Wong, BF Goodrich and Emhart Industries had operations that were ongoing in the 1940s, 1950s, 1960s, 1970s and 1980s. Public health officials have identified that area as the origin of the plume of perchlorate.
Perchlorate is a product used in the manufacture of both fireworks and ordnance. In very minute quantities perchlorate can wreak havoc on the thyroid gland.
The site has been designated by the Environmental Protection Agency as one of its Superfund sites, which makes federal funding for the remediation available but also carries with it a requirement that the parties responsible for the contamination assist in the effort. Simultaneously, the EPA will apply the Superfund money toward the remediation. Eventually, if any of the parties deemed responsible for the contamina-tion refuse to sponsor or otherwise pay for a share of the remediation, the EPA will sue and under federal law, any party proven responsible will be required to pay triple the cost of that portion of the clean up for which they were the contaminating party.
The ability to impose triple damages serves as an incentive for the re-sponsible entities to undertake the clean-up on their own or participate in funding an EPA-sponsored remediation.
Previously, the city of Rialto sued BF Goodrich over the contamination issue. Rialto dropped that lawsuit after the company agreed to undertake a remediation effort. BF Goodrich did pay a total of $4 million – $1 million each to the cities of Fontana, Rialto and Colton as well as to the West Valley Water District. That money was used to treat specific wells that were producing perchlorate-laden water but did not redress the underlying problems in the aquifer. BF Goodrich, like the other companies, will yet likely be on the hook for millions of dollars more in decontamination efforts.
An EPA-designed program of remediation, consisting of contaminated water being pumped out of the ground to then be treated and distributed to water districts, is underway. It will likely take two decades or more for the perchlorate levels to be reduced to acceptable limits.
Rialto officials had initially resisted the call to have the area declared a Superfund site, largely because doing so could have a deleterious impact on property values in the area. As the expense of completing a remediation of the problem has been driven home to city officials, it is now accepted that the Superfund designation is the only realistic way of coming to terms with the problem.
The county of San Bernardino, nevertheless, appears to be poised to commit money to a court battle to obtain a finding that it is not responsible for the contamination.
In May 2009, then-county counsel Ruth Stringer convinced the county board of supervisors to increase funding for legal services provided by the law firm of Gallagher & Gallagher to set in motion an effort to contest the potential EPA pleading that the action related to the Broco facility destruction exacerbated the contamination problem. The county has also retained another law firm, Price, Postel & Parma, to assist it with legal issues relating both to the perchlorate contamination in Rialto and a State Water Resources Control Board investigation and proceeding in which the county is not a direct party but one with a stake in the outcome. Available records show Price Postel & Parma had been paid $4 million by the county as of December 2009.
Some see little rationale for the county spending millions of dollars to engage in a legal battle over the contamination issues rather than simply utilizing the money to fund a clean-up effort that would satisfy the federal and state government as well as the relevant water agencies and districts.
But current county counsel Jean-Rene Basle told the board of supervisors this week that the county remains committed to engaging in a potentially bruising legal battle over the perchlorate issue.
“[A]uthorization to increase the contract amount is requested to allow for the additional services needed,” Basle told the board of supervisors. Those services, he said consisted of “1. Assistance with the implementation of the now-approved Final Closure Plan for the Broco Facility under submission to the State Department of Toxic Substances Control (“DTSC”) including: a. Technical support from a specialized technical consultant, Geo-Logic Associates, who provides professional geologists, certified engineering geologists and certified hydrogeologists to address technical implementation questions; and b. Addressing the continuing vigorous opposition to the county’s proposed plan by the West Valley Water District; and 2. Coordination, communication, and meetings with other interested agencies and parties concerning other perchlorate issues in the Basin; and assistance with the defense of the Stout and Zambelli parties as required by the county’s settlement agreements with each of these parties; and 4. Various settlement issues to the extent not otherwise covered by county insurance policies.” Stout and Zambelli are entities named in the litigation.
“Gallagher & Gallagher APC currently represents the county in connection with the federal and state court litigation and federal and state agencies’ investigations of the perchlorate groundwater contamination in the Rialto-Colton Basin, and these costs are paid under general liability insurance policies,” Basle said. “As a result, Gallagher & Gallagher APC has gained significant experience with the groundwater contamination issues in and around the Rialto-Colton Basin and the issues concerning the county’s Mid Valley Sanitary Landfill. In addition, the firm has extensive experience working with the DTSC.”
The board of supervisors complied with Basle’s request and increased the contract amount by $350,000, from $1,520,000 to $1,870,000. The rate payable for legal services performed under this agreement ranges from $195 to $250 per hour.

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