By Jeremy Ogul | Editor
The city of San Diego continues to pour buckets of cash into lawsuits regarding environmental contamination from the fuel tank farm near Qualcomm Stadium, but so far the legal efforts have yielded little more than judicial smackdowns and ever-rising consultant bills.
The latest blow came last October, when a Superior Court judge in Riverside threw out the city’s claim that a state agency overstepped its authority. The City Council voted not to appeal that case.
An appeal of another related case, however, offers a glimmer of hope to the battered legal team working to win something from the Texas-based petrochemical company responsible for cleaning up the mess on taxpayer-owned land.
On Feb. 3 lawyers for San Diego will present oral arguments at the Ninth Circuit Court of Appeals in Pasadena. The city is pursuing an appeal of a complex case dating back to 2007 against Kinder Morgan, which owns the Mission Valley Terminal, the collection of 24 refined petroleum tanks covering 66 acres north and south of Friars Road west of Interstate 15. Fuel tank trucks fill up at the Mission Valley Terminal to deliver gasoline to local gas stations and other customers.
Leaks that went undetected for years there spilled enormous amounts of fuel into the soil and groundwater beneath the stadium, contaminating a large swath with methyl tertiary butyl ether (MTBE) and other harmful chemicals. The cleanup process has taken more than 20 years and is still not complete. The city claims Kinder Morgan owes approximately $246 million in real estate damages and other penalties.
A federal district court judge in San Diego in 2013 issued a ruling in favor of Kinder Morgan, citing the statute of limitations and calling one of the city’s expert witnesses unreliable. The City Council voted not only to appeal the case but to file another lawsuit — this time against a state agency that granted Kinder Morgan permission to take water from a city aquifer, treat it and dump the finished product into Murphy Canyon Creek, which runs along the eastern edge of the stadium parking lot and flows into the San Diego River.
City water officials have long opposed that method of cleaning up the groundwater, arguing that it wastes a precious drinking water resource that could supply thousands of homes. The city has repeatedly demanded that Kinder Morgan find an alternative treatment method, but the company’s consultants have responded that the groundwater extraction is the most effective option.
In the lawsuit struck down last October, the city argued that the California Regional Water Quality Control Board could not allow Kinder Morgan to flush additional treated water without the city’s permission; the judge ruled that since the permit was temporary and has already been rescinded, the whole question was moot.
The city has outsourced much of the work on the two cases to the law firms of Opper & Varco and Tatro Tekosky Sadwick, and the environmental consulting firm Intera. An exact total was not immediately available at press time, but over the past eight years the City Council has approved spending at least $6 million on the various consultants and outside legal counsel associated with the two cases. The money has come from a variety of sources, including the city’s Water Utility Operating Fund and from a fund created by a settlement with a previous owner of the Mission Valley Terminal.
In addition to the city’s own costs, the district court also ordered the city to pay Kinder Morgan’s legal costs in the amount of $113,322.75 after the 2013 decision in Kinder Morgan’s favor. The city has also allocated staff time at a cost that was not immediately available.
—Reach Jeremy Ogul by email at firstname.lastname@example.org.