California Appeals Court Revives Water-Pollution Lawsuit

Southern California’s Santa Ana River, looking toward Riverside. (Photo: Scottthezombie at English Wikipedia [CC BY-SA 3.0 via Wikimedia Commons])

(CN) — A California appellate court has revived a lawsuit claiming Black & Decker and several other companies contaminated drinking water with chemicals used to make explosive cartridges, flares and rocket fuel.

Nearly a decade after the case was filed, the city was given the green light to move ahead with their case, which revolves around a 160-acre lot in the city of Rialto, about 10 miles north of Riverside.

The Rialto site was used as a storage and manufacturing operation for explosive cartridges, flares and other incendiary devices in 1952 by West Coast Loading Corp., a subsidiary of Kwikset Locks.

Chemicals processed and stored at the site contained ammonium perchlorate and potassium perchlorate.

Other companies purchased or leased the parcel over the decades, and eventually the successors to West Coast Loading were legally liable for the discharges of pollutants at the site, according to the complaint. In the 1970s, a fireworks-related business worked out of the site and so did defense contractor Raytheon that disposed of squibs, detonators, toy rocket motors and propellants in the 1980s.

Riverside sued in 2009, claiming the Rialto-Colton Groundwater Basin was contaminated with the chemical runoff.

The case was stayed for several years, and later defendants claimed the U.S. government was a necessary party because the Rialto site was used as an ammunition storage yard during World War II. After the stay was lifted, Riverside’s amended complaint removed a statutory clause, meaning the case would go before a jury.

Emhart Industries Inc., Kwikset and Black & Decker admitted that West Coast Loading assembled munitions and other perchlorate-containing products for the U.s. government on 28 acres of the leased Rialto property.

B.F. Goodrich, one of the defendants, described the extensive history of storage at a Rialto ammunition storage yards during World War II. The other defendants filed a joinder with the tire company to request dismissal of the case.

As summarized Wednesday in the unpublished opinion from the Second Appellate District Court: “The joinder filed by Emhart, Kwikset, and Black & Decker argued the United States owned certain equipment and all raw materials used by WCLC to manufacture munitions, including perchlorate, and controlled the subsidiary’s operations, which rendered it strictly liable under” California’s Superfund law.

A trial court agreed the U.S. government was an indispensable party and dismissed the case, but the appellate court unanimously reversed Wednesday.

Writing for a three-judge panel, Associate Justice Lamar Baker said the basis to dismiss Riverside’s complaint was “far too slender a reed to support a determination that the United States was more than a mere joint tortfeasor” or the party that committed the wrongdoing.

“The operative complaint alleges defendants’ business operations resulted in the pollution of Riverside’s water supplies with perchlorate and seeks related damages,” Baker wrote. “It does not mention the United States or imply the United States had any role in the alleged damages. Nor do defendants’ answers aver the United States is responsible.”

Baker wrote that only one answer by Emhart, Kwikset and Black & Decker even mentions the U.S. government and the relevant fact asserted is that WCLC assembled munitions and products under government contracts.

“It did not establish the extent of the United States’ involvement, or that WCLC was working exclusively for the United States,” Baker wrote.

To determine if the U.S. government is an active participant the court takes on two asserted premises: the U.S. government released perchlorate in the Rialto during World War II and second, they are responsible for any perchlorate released in Rialto by WCLC and Goodrich because both companies were under contract.

Goodrich referred to a 1943 safety bulletin shipment of military explosives that said the ammunition arrived at the Rialto site in “damaged condition” with “powder strewn upon the…car,” but that document did not say if the substance was brushed into the environment or even if it contained perchlorate, Baker wrote.

“In short, the evidence presented to the trial court was a cobbled-together collection of documents that, in defendants’ view, linked instructions and statements made by the government with actions performed by Goodrich and WCLC,” he wrote.

“Though we accord the trial court considerable deference when reviewing a decision for abuse of discretion, the documents actually before the trial court provide little information about what perchlorate contamination is fairly attributable to acts (or omissions) of the United States.

Presiding Justice Laurence Rubin and Associate Justice Dorothy Kim rounded out the appellate panel.

An email to the defendant’s and Riverside’s attorneys for comment were not immediately answered Wednesday evening.

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