District to appeal court's decision on water contamination claims

Responding to the decision released by the Supreme Court of the State of New York, Nassau County, attorneys representing Plainview Water District said they are preparing to file a Notice of Appeal, pressing for the Plainview Water District to be reimbursed for the costs it has incurred as a result of the MTBE contamination of the land and aquifer that supplies the District. MTBE is gasoline additive currently banned in the state of New York...

• Plaintiff responds to court's dismissal of its claim in Plainview Water District V. EXXONMobil Corporation, et al.

NEW YORK, Jan. 11, 2008 -- Responding to the decision released by the Supreme Court of the State of New York, Nassau County, (Hon. Kenneth Davis), the attorneys representing Plainview Water District ("PWD") said that they are preparing to file a Notice of Appeal. "We will continue to press for the Plainview Water District to be reimbursed for the costs it has incurred as a result of the defendants' negligent contamination of the land and the aquifer that supplies the Plainview Water District with MTBE," said lead attorney Paul J. Napoli, who tried the case at a bench trial from May to September of 2007.

Methyl Tertiary Butyl Ether ("MTBE") is a chemical additive to petroleum products, the use of which is currently banned as a gasoline additive in the State of New York. MTBE does not occur in nature, and it tends to move quickly through soils, dissolves in groundwater and flows with the same velocity as the groundwater. MTBE is persistent and does not tend to break down with other groundwater contaminants. Even a miniscule amount of MTBE in drinking water renders that water unfit for human consumption. New York State has established a Maximum Contaminant Level ("MCL") for MTBE at 10 parts per billion ("ppb"), but even as little as 0.5 ppb is detectable in drinking water. As little as 2,000 micrograms of MTBE will contaminate approximately 52,000 gallons of water to the MCL.

According to Napoli, this was a simple case of who should bear the burden of contamination of Plainview Water District's water supply. The import of Justice Davis' decision is that it takes the control of the costs necessary to clean and preserving the quality of the water supply out of the hands of the Water District and gives carte blanche to the polluters, in this case Exxon, Gulf and Shell Oil. Napoli also noted that Justice Davis' 56-page decision failed to address a lynchpin of the plaintiff's case, specifically, Plainview Water District's obligation, under the New York State Sanitary Code, to act affirmatively to protect the quality and purity of the water supply in the face of evidence that the purity of the aquifer that supplies Long Island with drinking water has been compromised. "We proved definitively that MTBE has been detected in 'monitoring' wells within hundreds of feet of Plainview's Plant 1 production wells. The results were recorded over 500 times at depths of over 150 feet, extending for thousands of feet and contaminating millions of gallons of water in the aquifer from which Plainview draws its water. As a result of that change to the quality of the aquifer, PWD was obligated by the New York State Sanitary Code to take action to prevent contamination to the water supply, which it did by incurring the attendant expenses in the millions of dollars to continue ongoing testing and to build treatment plants," said Napoli. New York State's Navigation Law requires that a polluter is responsible for such costs once they have been incurred, and the Court disregarded these important statutes and their effect in reaching its decision, according to Napoli.

Plainview Water District is permitted to draw 2400 gallons per minute ("gpm") from its wells, but has had to substantially reduce the amount of pumping in an effort to prevent MTBE from actually entering its system. This has put a strain on the District's other wells, as the PWD's overall capacity has been continually diminishing as a result of contamination throughout the District. Napoli explained that "unfortunately, the court failed to appreciate that PWD has a right to pump the wells at issue in this litigation, designated as 'Plant 1,' at their permitted capacity." The court stated that the PWD's pumping scenarios (which were all within their permitted capacities) were unrealistic but failed to understand that the only reason the wells have been pumping at such reduced rates is because of the threat of MTBE contamination being drawn in from the aquifer.

According to Napoli's partner Marc Jay Bern, "The fact remains that the Plainview Water district performed its obligations to protect the welfare of Plainview residents. The law requires that a water district take action to protect the water supply under the sanitary code and grants them the right to recover those costs. Nonetheless, the Court ignored those laws and squarely placed the burden of the costs of contamination on the innocent residents of Plainview and New York State."

Plainview Water District will file an immediate appeal, and are confident that the trial court's findings of law and fact will be overturned. Napoli concluded that "every resident of Long Island should be saddened that the people of Plainview will have to wait for appellate review to finally have the record set straight that it is the polluters, not the residents, who should bear the costs of preserving Long Island's precious water supply."


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