SCV Water has filed a lawsuit against the Whittaker Corporation, seeking remediation and cost recovery for the removal of volatile organic compounds (VOCs) and further remediation of perchlorate contamination from the Santa Clarita Valley ground water basin. The suit was filed in the United States District Court, Central District of California.
The Whittaker Site, 996 acres in the center of Santa Clarita, was used for munitions manufacturing up until 1987. The site itself was found to be contaminated with very high levels of ammonium perchlorate, as well as VOCs perchloroethylene (PCE) and trichloroethylene (TCE). The site continues to be subject to a cleanup order under the supervision of the State Department of Toxic Substances Control.
This isn’t the first time water providers have had to resort to litigation to compel Whittaker to clean up the damages its operations have caused in the community’s groundwater basin. In 2000, the predecessors to SCV Water filed suit to seek reimbursement of response costs, replacement water purchase costs, ongoing wellhead treatment, and well replacement. In 2003, Federal Court Judge, the Honorable Howard Matz, issued a published opinion finding that Whittaker and others were liable under the Comprehensive Environmental Response, Compensation and Recovery Act (“CERCLA”) for perchlorate contamination found in SCV water supply wells.
In 2007, Whittaker entered into a settlement agreement for the remediation or replacement of five production wells. Currently SCV Water operates two well treatment facilities (covering three impacted wells) which use a special resin designed to remove perchlorate molecules from the water.
Since that time, additional wells not included in the original settlement have been impacted by or threatened with perchlorate contamination, and VOC’s have been detected at a number of wells. Additional treatment facilities and operations will be needed to address these.
“The mandates issued to Whittaker in previous settlements do not adequately address the continuing spread of perchlorate contamination, and do not require Whittaker to address VOCs at all,” said Matt Stone, general manager of SCV Water. “It is Whittaker’s responsibility to reimburse the water providers and our community for the cost of replacement water, remediation, and additional groundwater treatment.”
Informal discussions with the Whittaker Corporation have not brought resolution, so the complaint was filed.
“We regularly collect and test water samples from every well in our system,” said Jim Leserman, senior engineer with SCV Water. “Our efforts confirm that the drinking water being served in the SCV is safe, and meets all state and federal drinking water health standards, and it’s important that Whittaker continues to fund the ongoing efforts.”
“Whittaker should step up and cover the cost of this remediation,” added Stone. “Unfortunately, history suggests they will continue to stall in hopes of postponing or avoiding their responsibilities. Despite the recent news accounts and public relations charm campaign to depict the Whittaker site cleanup as ‘nearly complete’, the legacy of their historic contamination of the community’s groundwater basin remains to be fully addressed.”
Information on the status of the Whittaker Bermite contamination and clean-up can be found at the City of Santa Clarita’s informational page www.whittakerbermite.com.
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6 Comments
I love it . Here the government back in the late 30’s and 40’s needed Bermite for WW2 and Vietnam. but now decades later that want to sue them and their not even around anymore. No one back then knew of the containments nor did they know SCV would get this ridiculously big. Good luck on the law suit but I doubt you’ll win
Someone sure got this headline wrong. Geez! Did you not read the press release? The lawsuit is over volatile organizc compounds. They sued over perchorate in 2003 and settled in 2007 when Whittiker agreed to pay for most of the clean up. They did not agree at that time to pay for the clean up of Volatile organic compounds, which cause cancer even in small amounts.
Can’t understand why Travis thinks the government shouldn’t pay for the clean up of a pollutant that could cause cancer. They just dumped all these chemicals instead of properly disposing of them. As engineers and chemists, they should have known better. Clean up is very expensive. It would be difficult for the community to pay for it without the responsible parties paying.
Someone sure got this headline wrong. Geez! Did you not read the press release? The lawsuit is over volatile organic compounds. They sued over perchlorate in 2000 and settled in 2007 when Whittiker agreed to pay for most of the clean up. The press release is pretty bizarre too. First it says they have never had to sue, then in the following sentence it says they sued in 2000. Guess they need a proof reader. They did not agree at that time to pay for the clean up of Volatile organic compounds, which cause cancer even in small amounts.
Can’t understand why Travis thinks the government shouldn’t pay for the clean up of a pollutant that could cause cancer. They just dumped all these chemicals instead of properly disposing of them. As engineers and chemists, they should have known better. Clean up is very expensive. It would be difficult for the community to pay for it without the responsible parties paying.
I lived in the Santa Clarita Valley in 1998-2003 when Castaic Lake Water Agency and the 3 retail water agencies were talking about bearing the cost of clean-up (remediation) of the ground water in a certain part of Santa Clarita. The concern everyone had was that perchlorate would contaminate most of Santa Clarita’s well water supply.
At that time two of my friends, Joan Dunn and Lynne Plambeck, both publicly elected Directors of Newhall County Water District phoned me at work. They were both profoundly upset because without any notice to them or to any other elected water agency directors, the lawyer for all 4 water agencies (a partner in a law firm I’ll call NLLP) had secretly signed an agreement with Whittaker and approved by a clueless-about-Santa Clarita judge. The agreement said that none of the Directors of the 4 water agencies (including Joan and Lynne) could take any steps on the list below to educate themselves about what was going on in the lawsuit unless each Director signed a confidentiality agreement for the benefit of Castaic Lake Water Agency andWhittaker, promising they would not talk about what they had seen in the expert reports or court documents with anyone other than the lawyer and that they could not have copies of any of the documents. In the confidentiality agreement, it said that if any Director broke the promises in the Agreement, s/he would be the subject of a potentially huge money judgment payable by the publicly elected Director from his or her own assets, not water agency assets.
In my 40 years as a lawyer I had never seen elected officials being asked to sign such a broad confidentiality agreement, let alone one which threatened and frightened the elected official. As I read through the confidentiality agreement which NLLP, Whittaker and the judge signed, all I could think about were the old days in the 1970’s when the mafia controlled the operations of many cities in New York State.
Among the documents which the confidentiality agreement said the publicly elected directors of the 4 water agencies were not supposed to talk about, copy, or disclose to voters and taxpayers were:
1. Written reports of the expert witnesses for each side of the case.
2. Written communications between the expert witnesses, the lawyers or the court.
3. Any tangible evidence which the experts physically looked at, like soil or water samples.
4. Any deposition transcripts of the expert witnesses.
5. Any videotapes of depositions of the expert witnesses.
6. Any of the expert witnesses notes on the water contamination or the lawsuit.
7. Written reports and letters written by any employees or officers of the 4 water agencies.
8. Written communications between the water agency employees or officers, the lawyers or the court.
9. Any tangible evidence which the 4 water agencies employees or officers physically looked at, like soil or water samples.
10. Any deposition transcripts of the 4 water agencies employees or officers.
11. Any videotapes of depositions of the 4 water agencies employees or officers.
12. Any of the 4 water agencies employees or officers’ notes on the water contamination or the lawsuit.
I could go on with even more of the list but you get the point. It seemed that Whittaker’s lawyers and the 4 water agencies’ lawyers at NLLP wanted to keep the publicly elected directors of Castaic Lake Water Agency or Newhall County Water District completely in the dark about their water agencies multi-million dollar problem. Even more important the Confidentiality Agreement’s purpose was to keep people who drank, cooked and bathed with the well water completely in the dark about what NLLP was alleging in his court filings and communications with Whittaker.
It was crystal clear that the lawyer from NLLP and the Executive Director of Castaic Lake Water Agency wanted to keep the 4 water agencies Directors completely in the dark and tightly control and filter the information about the lawsuit and the science so that all a publicly elected Director would hear the “party line” from NLLP., nothing more.
That level of secrecy and manipulation of publicly elected officials of 2 water agencies forced the elected officials to breach their duty of loyalty to the voters, taxpayers and water consumers. Sadly, only Joan and Lynne were smart enough to figure out what was going on.
That level of manipulation and secrecy on the part of the lawyer hired by the 4 water agencies was particularly appalling in the context of the California Department of Toxic Substances Control being in possession of expert reports which showed that the ground/well water contamination had gone under the Metrolink station and its parking lot at the “Swap Meet”, that the underground contaminated water had gone under some Circle J homes, the commercial buildings around and across the street from the old K-Mart, and westward under the street along the river all the way past City Hall.
VOC’s are particularly nasty carcinogens. They lurk in near surface ground water and then join gases which percolate upwards towards the earth’s surface and into the walls of buildings. Soon after Lynne and Joan found out about the confidentiality agreement which bound them even though they had not signed it, the California Department of Toxics Substances Control opened a new “case” about redevelopment of the swap meet with houses and apartments. The DTSC’s letter to the owner of the swap meet said that they understood the swap meet owner was not the party who contaminated taground water, but because of the risk of the VOC vapors coming out of the ground and into the walls of wooden structures, DTSC would not clear the property for wood frame apartment and town house development unless a deed restriction was recorded which absolutely forbid the new housing from having any “places for human habitation on the first floor.” Garages on the first floors of housing built above the VOC contaminated soil would be OK, but bedrooms or family rooms on the first floor would not be acceptable. The owners of the swap meet property apparently got very upset about the DTSC’s communications. About a year after that file was opened by DTSC it was closed.
Once I had the complete picture of what was going on I telephoned one of Whittaker’s senior lawyers and tried to talk to him about releasing Joan and Lynne from the confidentiality agreement. He sounded very irritated and said to me “Don’t you understand that it is the 4 water agencies’ lawyer who wanted the gag-order on the publicly elected directors of the water agencies, not him. Lynne and Joan decided to take the most conservative approach since truly evil manipulations were going on at the water agencies. They chose NOT to sign the acknowledgments of the confidentiality agreements’ terms which NLLP had provided to Joan, As a result, the 4 water agencies went blithely onward, with their decision makers designated by California law not being allowed to see any of the evidence in the case first hand, but instead to rely on their agencies’ lawyers from NLLP.
A few years later Castaic Lake Water Agency’s executives announced with great fanfare that they had settled the lawsuit with Whittaker. Of course the Settlement Agreement’s text and its important terms were “secret documents” which the public was not going to allow to be seen ever. Through a whole lot of intense internet searches by at least 4 Santa Claritans, the final version of the Settlement Agreement popped up. None of its exhibits were attached. All of us read it. What was particularly interesting to me was that Whittaker’s insurance companies were going to pay out “full policy limits”, with no meaningful amount of cash coming out of Whittaker’s pocket to add to the settlement. As a result the settlement only covered contamination of Santa Clarita’s ground/well water with the chemical called perchlorate, which is causes thyroid problems and developmental delays in children whose moms drank the perchlorate laden water. The settlement money was only supposed to be used to clean-up (remediate) the perchlorate from the community’s ground/well water and not address VOC contamination. In that Settlement Agreement Whittaker and the 4 water agencies addressing the ground/well water contamination with VOCs spreading throughout the community would be left for another day. (Based on my recollection of when that Settlement Agreement was signed, I think the 4 local water agencies (now merged into one public water agency) have been waiting about 10 years from the perchlorate settlement date to file this new lawsuit.
The Settlement Agreement also required that any further litigation between Whittaker and the 4 water agencies was to occur under a special procedure created by the California Legislature called a “reference proceeding”. Typically a reference proceeding follows California court rules and the presiding judicial decision maker is a retired judge who all of the parties to the case agree-on. Typically a reference proceeding is held in private law firm office suites. The public is not told when the reference proceeding sessions occur. Even if a member of the public knows about a hearing before the retired judge in the reference proceeding, the parties do not need to agree to let the public or press in to watch and listen to the evidence in the “reference proceeding”.
It will be interesting to see if NLLP has already been through the reference proceeding and efforts to settle the VOC related claims have failed, or if NLLP and its Santa Clarita Water Agency client are just now embarking on a reference proceeding which they are conveniently calling a lawsuit. In the meantime it sure would be sportsman-like for the new water agency to disclose to the public where in Santa Clarita the near surface well/ground water is contaminated with VOCs (which are carcinogenic) and where the active plumes of VOC laden underground water are moving.
It sounds like we need a “document dump” to add to SCVHistory.com. We (media) could have argued a Public Records Act request case in court, but we’d have had to know what documents to request.
Glad to see that someone changed the title from whittaker-corporation-sued-by-scv-water-over- perchlorate-contamination/ to the more accurate one above now and corrected the errors in the body of the document.