Are you in a case where an on-site and off-site groundwater plume of dry-cleaning solution (perchloroethylene or PCE) or other hazardous substance is intersected by sewers through which the used and disposed solution flowed? If so, the case of Mission Linen Supply v. City of Visalia (2019 WL 446358) bears your close review.
Based on the facts and expert testimony adduced at the bench trial, the court determined that: 1) the sewers were installed by the City were below general industry standards which can be better understood if you talked to a professional similar to a pipe lining company in San Diego; 2) the City sewers had numerous defects including holes and broken pipes, cracks, separated joints, missing portions of pipes, root intrusion and other conditions; and, 3) PCE was released into the environment as a result of these defects.
Pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et seq.), the two dry cleaners who operated at the site and the City were found liable. In allocating the future cleanup costs, the court determined the equitable basis for allocation was the plume itself. The prior dry cleaners were responsible for the on-site costs and the City was responsible for the off-site costs “because the City’s defective/leaking pipes transported and spread the PCE beyond the property boundaries.” 50% of future costs were assigned to the City.
A review of this case’s Findings of Fact show what expert testimony and evidence is necessary to reach the result reached by this court. The case is also a warning to municipalities with sewer lines intersecting cleanup sites or what could become cleanup sites. Do not fail to regularly and properly maintain your sewer systems.
This article has been republished with the permission of the author. It was first published on CSG’s Environmental Law Blog.
About the Author
John A. McKenney Jr. has been a frequent speaker at conferences and continuing legal education programs. For 18 years, John was on the faculty of Seton Hall University School of Law as an Adjunct Professor where he taught New Jersey Environmental Law. He also served as moderator of the ABA satellite seminar on Hazardous Waste and Superfund.
John is a co-editor of the ABA publication, CERCLA Enforcement – A Practitioner’s Compendium of Essential EPA Guidance and Policy Documents and co-authored the Generators’ Obligations chapter of the ABA’s RCRA Practice Manual. The standard form group agreement used at many remedial sites around the nation is based on a version he developed for The Information Network for Superfund Settlements.