The City of Ontario and San Bernardino County are likely on a legal collision course over groundwater contamination issues that are the legacy of operations at separate airports both entities control.
The litigation will commence around the same time that a plume consisting of aviation fuel, solvents used in plane maintenance and other chemicals that are byproducts of aviation operations at Ontario International Airport meets with or merges with the noxious contaminants emanating from Chino Airport, including those originating with the burying of napalm decades ago on that air field’s grounds.
The spreading contamination from both aerodromes represents a hazard to the region’s water supply and the health of the nearly 450,000 people who live in Ontario, Montclair, Chino and Chino Hills.
Both the county and Ontario are seeking to redress the issue at the property they control. Nevertheless, the more serious environmental threat represented by the plume originating in Ontario is threatening to greatly complicate an already challenging effort at remediation being conducted by the county in Chino.
On the afternoon of July 22, 2010, three buried drums were discovered at Chino airport during trenching for installation of a storm drain pipeline for a Southern California Edison facility that was being constructed. The County of San Bernardino Department of Airports was notified, and it contacted the county fire department’s hazardous materials division and TetraTech, an environmental assessment company under contract to the county. TetraTech retained Double Barrel, a commercial hazardous materials emergency responder, to assess the situation.Additional drums were discovered that day and by sunset on July 22, 2010, eight buried drums had been removed from the excavation. The drums did not have lids and contained soil on top of a tan resinous material. The contents of the drums were field tested using a chemical identification kit and determined to be a non-explosive, flammable, non-corrosive, organic resin-type material. Over the next several days, more drums were discovered and gingerly removed. Soil samples were collected and together with the material in the drums and the liquid in one of the drums, delivered to Microbac Laboratory in Riverside, and analyzed for volatile organic compounds, semi-volatile organic compounds, total petroleum hydrocarbons, carbon range, polynuclear aromatic hydrocarbons, flashpoint and their content of antimony, arsenic, barium, beryllium, cadmium, chromium, cobalt, copper, lead, mercury, molybdenum, nickel, selenium, silver, thallium, vanadium, and zinc. The analytical results indicated that high concentrations of benzene were present in all of the samples. Benzene concentrations ranging from 1,600 milligrams/kilogram (mg/kg) to 6,800 mg/kg were detected in the resinous material in the drums. The benzene concentration in the soil sample was 170 mg/kg. Also detected were toluene, ethylbenzene, xylene, styrene, 1,2,4-trimethylbenzene, and naphthalene. The tan resinous material appeared to be a jellied fuel mixture.
On July 28, 2010, a geophysical survey was conducted in an effort to locate any additional buried drums. During the survey, anomalies were found in several areas to the east and west of the original excavation and were marked as possible targets for further investigation. TetraTech formulated a removal strategy and submitted it to the California Regional Water Quality Control Board office in Riverside on August 9, 2010 and the staff for the board provided same-day verbal approval of that plan.  Excavation and removal of the remaining drums was conducted between August 16 and August 25, 2010. A total of 51 drums, several aluminum canisters and pieces of wood were removed from the excavation site and additional soil was excavated from beneath the drums, placed in stockpiles and covered. The resulting excavation measured approximately 100 feet from east to west and 20 feet from north to south. The bottom of the excavation varied from 10 to 15 feet below ground surface.
In August 2010, a staff member of the California Regional Water Quality Control Board observed the collection of the final confirmation soil samples. Personnel from the U.S. Environmental Protection Agency and the California Department of Toxic Substances Control were also present. The samples were submitted to a California certified laboratory for analysis. The analytical results for the soil samples showed very low concentrations of benzene, ethylbenzene, xylene,  trimethylbenzene,  naphthalene, gasoline, diesel and motor oil.
The analytical results were reviewed by the California Water Resources Board and discussed by phone with TetraTech employees. TetraTech’s analysis of the soil samples for volatile organic compounds, semi-volatile organic compounds, and total petroleum hydrocarbons showed concentrations of benzene up to 17.3 I-Ig/kg, ethylbenzene up to 3.2 I-Ig/kg, toluene up to 17.2 I-Ig/kg, xylene up to 7.54 I-Ig/kg, total petroleum hydrocarbons diesel range up to 32.2 mg/kg, and total petroleum hydrocarbons motor oil range up to 149 mg/kg. 1,2,4-trimethylbenzene was detected in only one sample at 5.91 pg/kg. Based on the analytical results of the stockpiled soil, TetraTech had the soil transported to TPS Technologies in Adelanto for disposal on August 20 and 21, 2010.
Based on the high benzene concentrations detected in the contents of the drums, on October 11, 2010, the sealed bins, containing waste product, drums and debris, were transported and disposed of at Rineco in Benton, Arkansas.
While the material represented a de facto limited and potentially more widespread ecological hazard to the ground and groundwater beneath the airport, the county at that time insisted the prompt removal of the drums and their contents by county officials was alleviating that danger and most or all of the contamination was being remediated.
At that time, state water resources officials said they were satisfied with the county’s response.
Chino Airport is an asset of the county overseen by the county’s airports division. Another problem there consists of a plume of perchloroethylene (PCE) and trichloroethene (TCE) that originated at Chino Airport migrating south-southwest from the western end of the airport property. The plume has reached a point more than 8,500 feet from the airport, south of Bickmore Avenue. There are 28 permanent wells in the area and 33 additional sample ground water collection probes that have monitored the extent of contamination and its movement. The highest level of TCE detected is 420 parts per billion. The allowable California safe drinking water standard is 5.0 parts of TCE per billion, such that some of the water in the basin is testing at a level that is 84 times higher than is considered safe.
There are multiple points within the plume where readings of over 100 parts per billion have been encountered.
Some of the plume is being captured by a desalter project that has wells within the area of the plume. The desalter plant was built to capture water and remove the high concentration of salt and nitrates present in the water as a consequence of the significant number of dairies in the area before the water reaches the Santa Ana River. The plant also pulls in TCE, so a portion of the TCE is not making it into the river but the desalter plant is inadequate to the task of effectuating the whole clean-up. The county, in conjunction with TetraTech, has devised and is executing a plan to remediate the TCE and PCE contamination.
According to the California Regional Water Quality Control Board, the TCE and PCE contamination, which is likely to have originated as a consequence of the use of those solvents on aircraft at the airport, is unrelated to the drums of what appears to be napalm that were buried at the airport.
Over the years, the county has increased its contract with Tetra Tech, Inc. for the handling of contamination issues at Chino Airport. In September 2014, having already paid Tetra Tech $1,695,880 for historical site assessment, environmental site assessments, environmental compliance audits and the conducting of a monitoring program at Chino Airport, it upped the contract by another $290,000, increasing it to $1,985,880.
Tetra Tech’s work at the airport has continued apace over the intervening years. In addition, Yellow Jacket Drilling Services, LLC has installed thirty-two groundwater monitoring wells along with other facilities in the area around the airport and the known extent of the contamination plume.
The potential for litigation between the county and the City of Ontario was revealed in the agenda for next week’s county board of supervisors meeting.
On January 10, the county board of supervisors is set to sign off on a waiver of potential conflict of interest arising out of the law firm of Kaplan Kirsch & Rockwell representing the County of San Bernardino while it is simultaneously representing the City of Ontario.
According to County Counsel Tom Bunton, “San Bernardino County is under a Regional Water Quality Control Board order to investigate, clean up and remediate a groundwater plume near Chino Airport. Since May of 2010, outside counsel, including Kaplan Kirsch & Rockwell LLP (KKR), in coordination with the office of county counsel has provided the necessary specialized legal advice and assistance to the county regarding the Chino Airport groundwater remediation.”
The office of county counsel is the county governmental structure’s stable of in-house attorneys.
“On February 9, 2021, the county expanded its agreement with KKR by entering into Contract No. 21-125 in the amount of $3.4 million to continue to provide legal services, including experts, related to the remediation and investigation of the county’s ability to recover clean-up costs from prior occupants and tenants at the Chino Airport who may have caused the contamination,” Bunton continued. “KKR has been asked to provide legal advice to the City of Ontario for a limited time regarding Federal Aviation Administration (FAA) regulatory requirements for the sale or lease of airport property. At this time there is no lawsuit pending between the county and the City of Ontario. However, the City of Ontario is potentially adverse to the county at the Chino Airport because a separate plume (the Archibald Plume) is migrating from and near the Ontario International Airport property towards the far eastern edge of the Chino Airport property. The Archibald Plume is a separate plume that may be threatening county property and damage to county property could result in the county filing a lawsuit against the city to seek remediation costs.”
According to technical experts, because the aviation operation at Ontario International Airport dwarfs the aviation-related activity at Chino Airport, the contamination threat from the northward facility is approaching 30 times as serious as what the county is dealing with in Chino.
“The potential FAA matter is unrelated to KKR’s work for the county related to the Chino Airport remediation project and KKR does not advise the county on FAA matters,” according to Bunton. “KKR will not be advising the City of Ontario regarding the development itself nor on environmental matters. The two matters do not involve common facts or relevant confidential information, and different attorneys will work on each matter. This representation is not prohibited by California Rules of Professional Conduct, Rule 1.7. Given the short duration and limited scope of the City of Ontario matter and that any potential litigation between the county and the City of Ontario regarding the plume is many years away at the earliest, the representation is not anticipated to be an issue, but should litigation ensue, KKR would not represent either party at the same time.”
-Mark Gutglueck