Pomona awarded $48M in damages
Citizens ‘will not have to pay the cost of cleaning up a mess created by a large foreign corporation’
A federal jury awarded the city of Pomona $48 million in damages to be paid by a foreign corporation for contaminating its groundwater with a toxic chemical mixed with fertilizer and sold to citrus farmers for decades.
Tuesday, the city won its case against the American subsidiary of a multibillion dollar Chilean company, Sociedad Química y Minera de Chile, known as SQM. The case, which began in 2011, bounced between courts until the city won after presenting its full argument recently in U.S. District Court in Los Angeles.
The jury found fertilizer shipped from the Atacama Desert of Chile in the 1930s and 1940s and mixed into the soil of Pomona’s fertile ground contained sodium nitrate, a common enhancement, but also perchlorate, a chemical that causes thyroid damage and wreaks havoc with crucial hormones at high doses and can interfere with childhood development.
When the state declared perchlorate a con
taminant and set a maximum level of 6 parts per billion in 2007, the Pomona had to close 14 wells, which pumped the perchlorate-contaminated water from the aquifer, part of the Chino Water Basin. It spent $8.5 million on design and construction of treatment plants. This does not include the cost of operation, wrote James Makshanoff, Pomona city manager, in an email.
“After 10 long years, Pomona has achieved its goal, which is to make sure that the citizens of our city will not have to pay the cost of cleaning up a mess created by a large foreign corporation doing business in our city,” Makshanoff said in a statement.
Lawyers for the city from SL Environmental Law Group based in San Francisco continued the case despite three losses in lower courts.
“Pomona was spending the money anyway to cleanup the perchlorate,” SL Environmental Law attorney Alexander Leff said Friday. “What the lawsuit was about was: Who should pay for that? The people of Pomona or the company that caused the pollution?
“City leaders of Pomona wanted to protect citizens’ health and also the citizens’ pocketbook. So they went after the polluter and they won,” Leff said.
SQM attorney Bob Smith, with San Diego-based law firm Lewis Brisbois Bisgaard & Smith, said after one of the trials in 2018 that the company’s product was not defective and the mining company did nothing wrong. He said the product mined from the Atacama Desert was considered the best in the land and had helped farmers grow more fruit.
On Friday, Smith said he would not comment on the case.
In a trial which Pomona lost, Pomona challenged the judge’s jury instructions, which said if the benefits of the product outweigh the harm, they should find for the defendant. That jury awarded zero damages. But Pomona did not want to charge its residents for water cleanup due to what they said was contaminated fertilizer, so it appealed and was granted a new trial.
SQM countered, saying the company should not be held liable for risks unknown to them in the 1930s and 1940s because that would be adhering to future water quality standards.
But the federal court jury disagreed and awarded the damages. “It will reimburse the city of Pomona in response to perchlorate contamination caused by the defendant,” Leff said.
A key expert witness traced the perchlorate in Pomona to the Chilean desert using chemical markers. In this instance, perchlorate is naturally occurring. Leff said SQM eventually did remove perchlorate from its fertilizer before selling it, a signal that the company was aware of its potentially harmful effects.
In the nearby San Gabriel Basin, about six water treatment plants are removing perchlorate from the groundwater, said Randy Schoellerman, executive director of the San Gabriel Basin Water Quality Authority.
Mostly the source of perchlorate is from manufacturers of rocket fuel and roadway flares. But he confirmed that perchlorate does occur naturally and has heard of cases where it was mixed in with fertilizer.
The state Division of Drinking Water is reviewing whether to tighten the maximum allowable level of perchlorate in wells, something that would trigger more treatment plants, he said. The state has a “public health goal” of 1 part per billion, he said.