Superfund or Superwaste??????
Superfund or Superwaste??????
Presented on Monday, May 5, 2014
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was as an answer to questions raised by Love Canal, Times Beach, and the Valley of the Drums. While one would think CERCLA would be a very useful tool for water providers dealing with contamination in their wells, its usage of late has turned against water providers. They have become targets of lawsuits, just as though they were the industry that caused the various contaminants and pollutants to impact the environment. They have also become the target of defendants who are brought into court by the water providers themselves. Cases filed by water providers result in counterclaims based mostly on the theory of “moving the plume.” That is, the well is pumped to serve water, but that pumping moves the contamination and this is actionable under CERCLA. And this outcome is technically correct, but in practicality it means that if a water provider finds a manmade chemical in its wells, it must stop pumping the well and never use it again. That way it won't have liability.
The only way to fix this problem is to have CERCLA amended to exclude from its scope of liability water providers who are pumping wells (and most likely removing the contaminants as a matter of public health and legal requirements). It sounds simple, but it isn’t.
To understand the dilemma facing water providers in this new world of responsibility for doing the right thing, will be discussed.
Steven Hoch, JD
Morris Polich & Purdy, Los Angeles, CA
Steven Hoch has spent 37 years practicing law in the area of environmental law, mostly in the field of groundwater. He has served as litigation counsel, appeared before agencies, and provided policy advice to many water providers.
Sudhir Burgaard
Morris Polich and Purdy LLP, Los Angeles, CA
Sudhir’s practice focuses on environmental compliance and litigation. Sudhir represents municipal and private clients in cases involving contaminated property that arise under federal and state statutes and common law, and she provides regulatory and compliance counseling in environmental remediation cases. She has handled matters involving the Endangered Species Act, the Federal Insecticide, Fungicide, and Rodenticide Act, and the Health and Safety Code. Sudhir has experience working with local, state, and federal agencies on environmental, natural resources, and land use matters. Her areas of expertise include the Comprehensive Environmental Response, Compensation, and Liability Act, the Resource Conservation and Recovery Act, the Clean Water Act, the Clean Air Act, the National Environmental Policy Act, and the California Environmental Quality Act.
