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College Sues Business for Water Contamination

BOISE (CN) - Boise State University sued two property management companies, claiming their tenant let a carcinogenic chemical leach into groundwater under the campus and into a river.

Boise State sued Snow Holdings LLC and DBSI Broadway Plaza LP on Tuesday in Ada County Court. They own portions of a 5.65-acre strip mall that borders Boise State University property and once was home to the Broadway Laundry Center.

The business used percholoethylene (PCE), a chemical frequently used in dry cleaning. Over the years it leached into groundwater, into the property's storm drain system, and eventually reached Boise State's storm drain system, which empties into the Boise River, the school says in the lawsuit.

Boise State wants the defendants to pay for monitoring, response and mediation efforts, on top of legal costs and attorneys' fees, which the school expects to continue for.

"The PCE from the property is continuing to enter the groundwater under the Boise State University campus and will continue to do so for the foreseeable future," the school claims. "IDEQ [the Idaho Department of Environmental Quality] has concluded that a 30-year monitoring period may be necessary to ensure protection of the public health, safety and welfare associated with the presence of PCE in the groundwater from defendants' property."

Defendant DBSI was supposed to come up with a plan to clean up the mess, but does not seem serious about submitting something acceptable, Boise State says.

Specifically, the school says, DBSI was required by a voluntary consent order with IDEQ to conduct site investigations and submit a remedial action plan, but failed to do so.

Boise State's Dilemma

The area's geography brings high groundwater levels, forcing Boise State at times to pump groundwater into the storm drain system to avoid flooding campus buildings. The storm system is discharged into the Boise River under a "multi-sector storm water permit" issued by the Environment Protection Agency.

After sampling data gathered by Boise State, however, the EPA advised the IDEQ and the university that any further discharge of contaminated storm drain water into the river would constitute a violation of the Clean Water Act, which "can be prosecuted by the United States as civil or criminal violations," according to the complaint.

Boise State temporarily tapped into the city sewer system to drain the water, but at significant expense.

In September, the EPA authorized the university to discharge groundwater into the Boise River under a National Pollutant Discharge Elimination System permit, so long as the amount of PCE stays under 3.5 parts per billion.

Boise State seeks recovery of costs of its mitigation efforts and wants the court to declare DBSI liable for past and future costs associated with remediation, monitoring and sampling. It also seeks an injunction forcing DBSI to protect Boise State from any present or future damages or liabilities that may arise out of the contamination.

DBSI captured worldwide attention in 2008 when investors filed what was initially a $2 billion class action against the failed Meridian, Idaho company, alleging investment and bank fraud in violation of the Idaho Securities Act.

Four company officers were convicted in April 2014 on 44 counts of security fraud. Company President Douglas Swenson was also convicted of 34 counts of wire fraud. All four men were acquitted on charges of conspiracy to commit securities fraud, mail fraud and money laundering.

That same year, 148 entities affiliated with DBSI filed for bankruptcy protection in Delaware. Investors, property owners, vendors and state and local governments have filed thousands of claims in the bankruptcy case in an effort to recover $102 billion following the company's collapse.

DBSI Broadway Plaza LP was not one of the companies that filed for protection, according to the complaint, and is therefore not protected under bankruptcy laws.

DBSI Broadway is "considered a non-debtor affiliate and there is no impediment to dealing with such entity outside the purview of the bankruptcy court," according to the complaint.

Boise State is represented by Albert Baker and Scott Magnuson, with Barker Rosholt & Simpson.

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