(March 15) The county is set to increase by another $455,000 the $1.87 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 this week deferred upping Gallagher & Gallagher’s retainer to $2,325,000 while paperwork pertaining to the firm’s work is processed. The firm for four years has provided legal services to the county related to the former Broco facility closure at the Mid Valley Landfill and other actions related to perchlorate contamination in Rialto’s aquifer.
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 hazardous 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 Recovery 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 contamination 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 it was the contaminating party.
The ability to impose triple damages serves as an incentive for the responsible 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, has committed several million dollars 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 retain Gallagher & Gallagher at a cost of $710,000. The legal services Gallagher & Gallagher was to provide pertained to allegations against the county for perchlorate contamination in connection with particular matters that fall outside of the defense work covered by the county’s insurance. Gallagher & Gallagher 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.
The board of supervisors previously approved three amendments to the Gallagher & Gallagher contract, in the amounts of $560,000 on March 23, 2010, $250,000 on December 10, 2010, and $350,000 on February 14, 2012.
Available records show Price Postel & Parma, another firm representing the county with regard to perchlorate contamination lititgation, had been paid $4 million by the county as of December 2009.
In a report to the board of supervisors dated March 12 from Jean-Rene Basle, the current county counsel, and Gerry Newcome, the county director of public works, it is stated, “Currently, outside legal services and consultant services remain necessary to assist county counsel and the solid waste management division with issues concerning implementation of the Broco Closure Plan, with continued legal services connected with the Zambelli settlement and to address continuing allegations of damages from third parties claiming that the county’s actions in the Rialto-Colton Basin have resulted in harm to certain parties not involved in the federal perchlorate litigation. Therefore, a further amendment to the contract is needed at this time in order for Gallagher & Gallagher to continue to provide necessary legal services and legal-consultant services to complete these matters. The other related matters that are outside the defense work covered by the county’s insurers include: (1) assistance with the implementation of the now-approved final closure plan for the Broco facility under submission to the Department of Toxic Substances Control, 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; (2) coordination, communication, and meetings with other interested agencies and parties concerning other perchlorate issues in the basin; (3) 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.
The board of supervisors held off on Basle’s request to increase the contract amount by $455,000, from $1,870,000 to 2,325,000, until a future date when billing and other documents from the firm have been provided.