County’s 1994 Expansion Of Landfill Persists As Major Environmental Liability

(July 8)  The way in which the county went about expanding the Mid-Valley Landfill two decades ago has already cost the county more than $8.75 million in technical surveying and legal costs and this week county counsel signaled that it will cost the county even more.
At the root of the matter is perchlorate contamination in north Rialto that has seeped into the region’s water table and is continuing to spread.
In north Rialto, 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. All of those operations utilized perchlorate in their manufacturing processes. Near those operations Broco Inc. maintained a hazardous-waste disposal operation which was active from the mid-1960s until the late 1980s.
The county purchased the Broco property in 1994 and used it in the expansion of the Mid-Valley Sanitary Landfill.
In the late 1990s, a plume of contaminants containing perchlorate was found to be migrating through the local water table. 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.
It has been established that the five aforementioned corporate entities – Pyro Spectaculars, Ken Thompson Inc., Chung Ming Wong, BF Goodrich, and Emhart Industries – were responsible for the accumulation and release of the perchlorate.
Water agency officials, state officials and federal officials also believe the county of San Bernardino may have engaged in activity that exacerbated the perchlorate problem.
Officials with the Rialto-based West Valley Water District and their lawyers have alleged that San Bernardino County razed and buried structures at the Broco facility to make way for the landfill expansion, action those officials maintain was not only illegal but has worsened the contamination of the groundwater below Rialto.
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.
The Environmental Protection Agency  has designated the north Rialto area 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.
The county has already paid the environmental engineering consulting firm Geo-Logic Associates $2,430,892  for assistance with regard to perchlorate contamination in northern Rialto.
In May 2009, then-county counsel Ruth Stringer convinced the county board of supervisors to retain the law firm of Gallagher & Gallagher at an original cost of $710,000. The legal services Gallagher & Gallagher was to provide pertained to allegations against the county relating to  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.  Records show that so far the county has paid Gallagher & Gallagher  a total of $2,325,000 and that another law firm, Price Postel & Parma has been paid $4 million by the county for its work with regard to perchlorate contamination litigation.
This week, in compliance with recommendations made to it by county counsel Jean-Rene Basle and county director of public works Gerry Newcombe, the county board of supervisors consented to entering into a new contract with Gallagher & Gallagher that will likely cost the county several more million dollars in legal fees.
In his presentation of the report to the board, Basle stated, “Since about 2009, Gallagher has been providing legal services under contract with the county in connection with perchlorate and other contamination issues in the Rialto-Colton Basin as assigned by county counsel. On July 1, 2013 the county issued a purchase order to Gallagher to advise and assist county counsel in the on-going perchlorate and other contamination issues in the Rialto-Colton Basin that were not resolved by federal court settlements reached in 2013. The Gallagher firm was selected to provide these additional legal services because of their familiarity with the federal lawsuit and associated contamination issues due to their representation of the county in the consolidated federal lawsuits, identified as city of Rialto v. Dept. of Defense.”
Basle continued, “It is now necessary to enter into a new contract with the Gallagher firm. Continuing contamination issues concern third parties who were not named parties in the federal lawsuit. In the fall of 2013, certain water purveyors in the basin commenced new litigation concerning legal rights to water in the basin. While this new lawsuit does not name the county, certain water purveyors are asserting claims against the county related to that new litigation. Gallagher has assisted in the legal analysis of those claims and in the presentations made to the board of supervisors to assist in the county’s timely responses (which were required to be made within 14 days of each tender). On April 17, 2014, Fontana Water Company and Fontana Union Water Company each filed claims against the county asserting that the county is obligated to defend and indemnify each of them against the litigation filed in September 2013, and the county has contaminated groundwater. They asserted that damages could amount to more than $10 million. Litigation against the county is anticipated but has not yet been filed.”
Basle said, “By contracting with Gallagher, a qualified law firm, county counsel is able to augment services in this specialized area of law, including federal law (Comprehensive Environmental Response, Compensation, and Liability Act) and state law (Porter-Cologne Water Quality Act), groundwater contamination and water-related issues in the basin.”
Basle did not delineate a specific contract amount but said, “Services provided by The Gallagher Law Group, LLP will be funded by the department of public works. Sufficient appropriation and revenue exists in the solid waste management district’s 2014-15 budget operations fund for the cost of these services.”

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