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 below general industry standards; 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.

New Jersey continues to lead the country in the effort to regulate so-called “Forever Chemicals,” the family of chemicals known as perfluoroalkyl and polyfluoroalkyl substances (“PFAS”) found to be prevalent in drinking water supplies around the country due to their high solubility, mobility and persistence in water.  PFAS are found in many household products, and they have been used in various industrial applications – including electroplating, metal finishing, adhesives, paints and many coatings.  PFAS are also found in Aqueous Film Forming Foam (“AFFF”), which is used to extinguish fires caused by petroleum products such as oil and jet fuel.

In September 2018, New Jersey became the first state to establish a drinking water standard (“Maximum Contaminant Level” or “MCL”) for PFAS, following the recommendations of the Drinking Water Quality Institute (“DWQI”), which is an advisory body to the New Jersey Department of Environmental Protection (“NJDEP”) responsible for recommending MCLs in drinking water.  The NJDEP established an MCL for perfluorononanoic acid (“PFNA”) of 13 parts per trillion (“ppt”).  Recently, the NJDEP announced plans to propose the country’s first MCLs for perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”).  DWQI recommends an MCL for PFOA of 14 ppt, and an MCL for PFOS of 13 ppt; these numeric criteria may be included in the upcoming rule proposal.

In addition to regulating PFAS in drinking water, the State intends to regulate PFAS in ground water as well.  NJDEP has developed and is requesting public input for draft Interim Specific Ground Water Quality Criteria (ISGWQC) and draft Interim Practical Quantitation Levels (PQLs) for PFOS and PFOA, which will establish cleanup levels in groundwater contaminated with these substances. In its announcement, NJDEP expressed its disappointment in the Trump Administration’s failure to move quickly to establish federal MCLs for PFAS.