Department of Water Resources
A daily compilation of significant news articles and comment
May 6, 2009
4. Water Quality –
Supreme Court Absolves Shell of Arvin Pesticide Spills
Environment News Service
$2.8M should go to Rialto
San Bernardino
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Supreme Court Absolves Shell of Arvin Pesticide Spills
Environment News Service – 5/5/09
Seeking reimbursement for remediation activities already done at the contaminated site, the
They were using the authority of the Comprehensive Environmental Response, Compensation, and Liability Act, CERCLA, which is designed to promote the cleanup of hazardous waste sites and to ensure that cleanup costs are borne by those responsible for the contamination.
The soil and groundwater on the five-acre site at issue, located 21 miles southeast of
Formerly the Brown & Bryant agricultural chemical distribution center, the deserted site now is on the nation's Superfund List of abandoned hazardous waste sites.
Yet the Arvin-Edison Water District maintains six municipal groundwater wells within one mile of the site. The public water system supplies drinking water to about 7,800 people and irrigates about 19,600 acres of cropland. The area surrounding the site is industrial, agricultural, and residential.
In 1960, Brown & Bryant, Inc., an agricultural chemical distributor, began operating on the site and later expanded onto an adjacent parcel owned by petitioners Burlington Northern and Santa Fe Railway Company and Union Pacific Railroad Company.
As part of its business, Brown & Bryant purchased and stored various hazardous chemicals, including the pesticide D–D, which it bought from petitioner Shell Oil Company.
Over the course of B&B's 28 years of operation, the court noted, many of these chemicals spilled during transfers and deliveries, and during numerous equipment failures as the corrosive chemical D-D rusted tanks and eroded valves.
Investigations of B&B by the California Department of Toxic Substances Control and the federal Environmental Protection Agency revealed "significant soil and ground water contamination" and in 1989, the governments exercised their CERCLA authority to clean up the Arvin site, spending over $8 million by 1998.
In the lawsuit brought by the governments against Shell and the railroads, the District Court ruled in favor of the governments, finding that both the railroads and Shell were potentially responsible parties under CERCLA.
The railroads were responsible for contaminating the soil and groundwater because they owned part of the facility and Shell because it had "arranged for disposal ... of hazardous substances," through D–D's sale and delivery, the governments claimed.
The District Court apportioned liability, holding the railroads liable for nine percent of the governments' total response costs, and Shell liable for six percent.
On appeal, the Ninth Circuit agreed that Shell could be held liable as an arranger and affirmed the District Court's decision in that respect.
Although the Court of Appeals agreed that the harm in this case was theoretically capable of apportionment, it found the facts present in the record insufficient to support apportionment, and therefore held Shell and the railroads "jointly and severally liable" for the governments' cleanup costs.
But the Supreme Court, in an 8-1 opinion, held that Shell is not liable as an arranger for the contamination at the Arvin facility.
The evidence shows that Shell was aware that minor, accidental spills occurred during D–D's transfer from the common carrier to Brown & Bryant's storage tanks after the product had come under B&B's stewardship.
However, the Supreme Court noted, "it also reveals that Shell took numerous steps to encourage its distributors to reduce the likelihood of spills. Thus, Shell's mere knowledge of continuing spills and leaks is insufficient grounds for concluding that it 'arranged for' D–D's disposal."
The Supreme Court upheld Fresno-based U.S. District Judge Oliver Wanger's determination that the railroads owe a total of nine percent of the total cleanup costs.
EPA and the state are planning additional cleanup actions at the Brown & Bryant Arvin Plant site. #
http://www.ens-newswire.com/ens/may2009/2009-05-05-091.asp
$2.8M should go to Rialto
By Josh Dulaney, staff writer
Together with the Rialto-based West Valley Water District, the city has requested that the money instead be used for a project that would treat 2,000 gallons of contaminated water per minute at the city's well No. 6 and the water district's well No. 11.
Each well is inactive.
In an April letter to the Riverside-based Santa Ana Regional Water Quality Control Board, the city and the water district said the money should be used for the treatment project because the U.S. Environmental Protection Agency already is installing six groundwater monitoring wells at a 160-acre site northeast of town where perchlorate is flowing.
And Emhart Industries, a defunct subsidiary of Black and Decker Corp., is conducting a soil investigation at the site.
Perchlorate is used in rocket fuel and fireworks. It interferes with the thyroid gland, which can affect physical and neurological development, scientists say.
Defense contractors and fireworks companies operated on the 160-acre site in the decades after World War II.
The city and the water district submitted a request in February 2008 for $3 million to study groundwater related to perchlorate contamination.
A month later, the state board approved the funding.
About $200,000 was used to develop a long-term remediation plan, officials said.
The remaining $2.8 million would have been used for the type of work the EPA and Emhart are already doing, officials said.
"This is more about well treatment, whereas the EPA is trying to find the source," said Fred Cardenas, the city's deputy director of public works.
The project is known as the Joint Wellhead Treatment Project.
Well No. 6 is "pretty high in perchlorate," said Anthony Araiza, general manager of the water district.
The well, located on
The water district's well No. 11 on
The funds will be drawn from the state's Cleanup and Abatement Account, which is managed by the state board.
The account supplies funds for contract services to clean up waste, abate the effects of waste or to stave off actual or potential public health threats.
The state board, regional boards or any governmental agency with the authority to clean waste is eligible for funding from the account.
The state board allocates money from the account for special projects or emergency projects, as needed.
"(The request) won't go before the state board before July," Araiza said.
He said it's important the money be re-distributed for the project because the city and the water district also are applying for cleanup funds through a Proposition 84 grant, administered by the California Department of Public Health. Proposition 84 was a $5.4billion water-safety bond passed by state voters in 2006.
City and water district officials anticipate that about $1.5 million will be needed to perform the engineering and planning work necessary to submit a "shovel ready" Proposition 84 grant application to the department by a September deadline.
Should the funds be approved and the equipment be installed, state and federal officials would take at least a year to test and certify the project, Araiza said.#
http://www.sbsun.com/news/ci_12302063
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