On Monday, the federal government asked a California federal court to dismiss lawsuits brought by Rio Linda Elverta Community Water District and Sacramento Suburban Water District alleging the government and chemical companies have contaminated local drinking water with Hexavalent Chromium-6, detailing that cleanup efforts are already underway.
The federal government proposed that it has immunity from the allegations of the lawsuits and that the water districts are improperly asking for a resolution which would interfere with work that’s already underway.
The Sacramento Suburban Water District and Rio Linda Elverta Community Water District separately have separately brought lawsuits that allege the U.S. Air Force handled hazardous materials containing hexavalent chromium, or Cr6, at McClellan AFB that seeped into its groundwater aquifer and contaminated local water.
Honeywell, DuPont, and others are named as supplier defendants in the lawsuits.
The water districts want the defendants to pay for the removal of Cr6 from drinking water under the Resource Conservation and Recovery Act among other demands, according to amended complaints filed in May. However, groundwater cleanup at McClellan is ongoing and the Comprehensive Environmental Response, Compensation and Liability Act forbids a court from overriding that work.
“Plaintiffs’ requested injunction would require the Air Force to refocus the soil response actions to emphasize the hexavalent chromium contained therein. This would alter the current remedy in place and interfere with the completion of the selected remedy already in progress.”
The federal government said granting the water districts’ claims on Cr6 would impact several other contaminants and would interfere with cleanup work already underway.
According to court documents, the long-term cleanup should be complete by 2050.
Feds also argue that the water districts can’t show how they were damaged. Claims that Cr6 in the water supply are higher than California’s public health goal isn’t enough. According to the government, public health goals are discretionary, not a regulatory requirement.
Cr6, a toxic form of chromium, is used in metal finishing processes. Studies show that Cr6 in drinking water may cause an increased risk of stomach cancer and reproductive harm. Direct contact with Cr6 can cause allergic skin rashes in some people.
The federal government also said that under the Federal Tort Claims Act it is immune from nuisance, negligence, and other claims. The Air Force had discretion about how it could use and dispose of “chromium-related waste” that was not directed by a specific, mandatory policy, and the government does not waive its immunity from suits that are “based upon the exercise … a discretionary function.”
“the military’s regulations and policies do not contain any provisions that required chromium waste to be managed or disposed of in a specific manner. The indisputable facts in this case also establish that the Air Force used its judgment to balance and weigh consideration of military readiness, environmental compliance, personnel safety, as well as economic considerations in evaluating the use of chromium.”
The cases are Sacramento Suburban Water District v. Elementis Chromium Inc. et al., case number 2:17-cv-01353, and Rio Linda Elverta Community Water District v. U.S. et al., case number 2:17-cv-01349, in the U.S. District Court for the Eastern District of California.
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