Nevada Environmental Response Trust Sues Over Perchlorate Water Contamination

On Monday, a lawsuit was filed by the trustee of the Nevada Environmental Response Trust (NERT). The suit is filed against American Pacific Corporation (AMPAC), who was the former owner of the land in question.

The suit was brought under the provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which states that the entity incurring the costs of the cleanup, and those who have paid those costs, has the right to seek contributions from other parties. The plaintiff claims that under CERCLA, AMPAC is the responsible party and must resolve its liability to the state of Nevada.

NERT’s cleanup costs stem from a long history of perchlorate production on the Henderson Site, a plant 13 miles southeast of Las Vegas. That plant was owned and operated by AMPAC for the purpose of perchloarate production from 1958 to 1988. The plaintiff alleged that spills and releases of hazardous substances have contaminated soil and groundwater under and around the Henderson Site, resulting from AMPAC’s presence and production in that area.

In the late 1990s it was discovered that the Colorado River Basin was receiving approximately a thousand pounds of perchlorate, and the source of the contamination was traced back to the Las Vegas Wash, a tributary of Lake Mead. Around the same time, the Southern Nevada Water Authority established the Las Vegas Wash Stabilization Program, which eventually became responsible for the weir project, which placed barriers in bodies of water with the purpose of controlling flow and reducing erosion. Part of this operation meant extracting groundwater from the areas and repositioning it, which could spread the contamination.

In response to this risk, the Nevada Division of Environmental Protection (NDEP) ordered NERT to perform removal action to treat perchlorate-impacted groundwater resulting from the weir project in March 2017. During that month, NDEP had a consulting company evaluate the area, where they discovered that large amounts of perchlorate had escaped AMPAC’s capture zone and was contaminating the water in the Las Vegas Wash.

NERT, having allegedly not known about this before, conducted their own research and confirmed that this was in fact the case. They say that this contamination occurred because of ineffective perchlorate filtering on the part of AMPAC. NERT, who has spent 36 million dollars to conduct this water treatment and will spend even more in the future, believes that they have a right to compensation under CERCLA. They request that the court declares AMPAC liable for this contamination and require them to pay the portion of the costs that NERT has expended during this cleanup effort.

The plaintiff is represented by Foley & Lardner and Fennemore Craig.