Roosevelt Irrigation District, aka RID, a West Valley quasi-government agency, will have formal complaints filed against it for soil and possible ground-water contamination on Monday morning at 08:00 with the ADEQ and with ADWR.

 These complaints filed against thirty (30) of RID operated well sites in the vicinity of the West Van Buren plume will be filed by S. A. Everly, managing General Partner of Phoenix Valley Design/Build, a long-time political activist concerned with the activities of local government entities and their ties with certain local politicians and the legal industry.

 These complaints come three (3) months after RID filed a $40million suit against seventy-two (72) defendants (including the City of Phoenix, Maricopa County, Maricopa County Community College and SRP) for contamination of the very waters from which RID is pumping.

 The well site inspections and subsequent photos of oil leaks to the ground surrounding each well-head is sufficient evidence to compel ADEQ and ADWR to investigate the possible migration of hydrocarbons through the un-compacted soil surrounding the well casing at each site.

 Mr. Everly has stated that he is prepared to forward a copy of each complaint to the EPA in the event ADEQ and ADWR are unprepared to immediately and vigorously enforce the environmental laws currently in place.

 Further details and questions can be directed to S. A. Everly at 602 359-6799 and at a press-conference to be held in the courtyard of the ADEQ offices on West Washington Street at 08:00, Monday the 25^th of October 2010.

Read the ADEQ responses to these questions:

09/20/10 Up-date:
A meeting was held with Henry Darwin, Deputy Director of ADEQ and with Amanda Stone, Director of Waste Programs division of ADEQ.

The following responses to the previous six questions are as follows:
Question #1 ADEQ delayed the decision to grant RID permission to perform a conditional interim ERA in order to assure itself that all state laws were followed.
Question #2 See answer to Question #1.
Question #3 ADEQ chose to answer this question by indicating that its sole concern was the adherence to state law and, subsequently, has insufficient grounds upon which to cite the Defendants in RID’s complaint. ADEQ when on to point out that it has limited concern for the federal laws involving the property rights of state property owners as they relate to federal law.
Question #4 ADEQ made it clear that the federal agency must answer this question and the ADEQ is aware that the protection it affords state property owners can be upset by federal law and recognizes that federal laws can readily defeat state laws to which ADEQ subscribes.
Question #5 ADEQ merely stated that it has no position regarding the RID suit and, subsequently, has no motivation to involve itself aside from the fact that the state laws are followed. ADEQ was also quite emphatic in stating that it has “no horse in the race”, regarding the RID suit and, subsequently, has no motivation to involve itself aside from the fact that state laws are followed. CERCLA law was cited as the basis for the RID suit, ADEQ stated, and therefore it feels it is detached from the matter.
Question #6 ADEQ stated clearly that it has not made a decision yet, regarding its opinion of the reports it has received from RID… reports it has had in its possession for the past 1 ½ months.

Now the question is, “What is it going to take and/or who is it going to be that provides ADEQ its ‘horse in the race’”?

It has also come to light through conversations with various legislators and various attorneys involved in this outlandish suit information the public needs to know and ask questions of their elected officials.

It is now evident, through conversations and emails obtained by this firm, that State Senators were aware of Gallagher and Kennedy’s plans to sue these Defendants as early as last Fall.  It is also evident by meetings held with the Governor’s staff that the Governor was aware of this suit as early as May 2010.  Now ask yourself… no ask them why they allowed the government agency of Roosevelt Irrigation District to sue these Defendants knowing full well that this suit would result in the cessation of commercial real estate sales West of I-17.  Are they attempting to reduce the West Valley property values even further?  Are they uninterested in the devastating effect of resulting property tax rate increases?

S A Everly

Brief rev. 09/13/10

On July 23, 2010, Roosevelt Irrigation District (RID), an irrigation district organized and operated (since 1926) under Article XIII of the Arizona Constitution, Title 48, Chapter 19 of the Arizona Revised Statutes and operated as both a private entity as well as a political subdivision of the State of Arizona – filed complaint CV-10-0290-PHX-ROS in The United States District Court for the District of Arizona, with the Honorable Roslyn O Silver presiding.

(RID), represented by the law firm of Gallagher & Kennedy, P.A. of Phoenix and specifically David Kimball and Stuart Kimball allege that all 72 entities (DEFENDANTS) are liable for violations of Comprehensive Environmental Response, Compensation, and Liability Act – CERCLA and other environmental laws and regulations, as well as for common-law torts amounting to $40,000,000 at least and each (DEFENDANTS) are held jointly and severally responsible for a complaint total of $2,880,000,000 at least.

Yes, this is a Two Billion Eight hundred and Eighty Million dollar lawsuit.

(RID) contends that the (DEFENDANTS) have contributed to the West Van Buren groundwater contamination Plume by emitting TCE, PCE, TCA, DCA, DCE and MTBE or any other substances into (RID)’s wells.

(RID)’s list of (DEFENDANTS) include:

1. Action Fabrication of Arizona, Inc.
2. Alcatel-Lucent USA, Inc.
3. Arizona Bus Lines, Inc.
4. ArvinMeritor, Inc.
5. AZLT Corporation
6. Bakala Investment Properties, LLC.
7. BDR Liquidating, LLC.
8. Bill’s Cylinder Head Service, Inc.
9. BNSF Railway Company
10. BP West Coast Products, LLC.
11. Brake Supply Company, Inc.
12. Capital Liquidations, LLC.
13. Century Wheel & Rim Corporation
14. Chevron USA, Inc.
15. City of Phoenix
16. Cooper Industries, LLC.
17. Corning Incorporated
18. D-Velco Manufacturing of Arizona
19. DJM Construction, Inc.
20. Dolphin, Incorporated
21. ELM Properties, LLC
22. Global Experience Specialists, Inc.
23. Hi-Tech Plating, Inc.
24. Holsum Bakery, Inc.
25. Honeywell International, Inc.
26. JT’s Diesel Repair, Inc.
27. Kinder Morgan G P, Inc.
28. Laundry and Cleaners Supply, Inc.
29. Layke, Inc.
30. Manco, Inc.
31. M A P Acquisitions, Inc.
32. Maricopa County
33. Maricopa County Community College District, RIO Salado Community College
34. Maricopa Land and Cattle Company
35. Milum Textile Services Co.
36. North American Terminals Management, Inc.
37. NUCOR Corporation
38. Optifund, Inc.
39. Osborn Products, Inc.
40. Penn Racquet Sports, Inc.
41. Phoenix Heat Treating, Inc.
42. Phoenix Industrial Properties, Inc.
43. Phoenix Manufacturing, Inc.
44. Phoenix Newspapers, Inc.
45. Phoenix Vegetable Distributors
46. Praxair, Inc.
47. Prudential Overall Supply
48. Research Chemicals Incorporated
49. Rexam Beverage Can Company
50. Salt River Project Agricultural Improvement and Power District
51. Sav-Trac of Arizona, Inc.
52. Schuff Steel Company
53. Seaport Petroleum Corporation
54. Sheet Metal Fabricating Specialists LLC.
55. Shell Oil Company
56. Southwest Roofing Supply, Inc.
57. Southwest Solvents and Chemicals, Inc.
58. Sunbelt Investment Holdings, Inc.
59. The Seven Angels, LLC.
60. Times Fiber Communications, Inc.
61. Union Pacific Railroad Company
62. United Parcel Service, Inc.
63. Univar USA, Inc.
64. URS Southwest, Inc.
65. Walker Power Systems, Inc.
66. West Monroe Property, Inc.
67. Western Dynex Corporation
68. Willmore Manufacturing, Inc.
69. World Resources Company
70. YRC, Inc.
71. U S Department of Defense (USAF)
72. U S Department of Energy

Several of these (DEFENDANTS) are outside the Plume area and several of these (DEFENDANTS) have not emitted any contaminants and, at least, one (DEFENDANT) has an EPA Phase I study and an individual letter from ADEQ stating no releases, no contaminants discovered in ADEQ test wells and is not a “possible responsible party” (PRP).

Nevertheless (RID) refuses (through its attorneys) to release these (DEFENDANTS) from the filed claim.

Background on Roosevelt Irrigation District (RID):

• Formed in the 1920’s to provide irrigation water for the cotton and alfalfa growers in the West Valley, took the well rights from Carrick & Mangham Agua Fria Lands & Irrigation Company issued to it by the Salt River Valley Water Users’ Association on July 10, 1923.
• (RID)’s board of directors:

W Bruce Heiden

Dwight B Leister

Kenneth C Gingg

And their manager, Stan Ashby, currently control the activities of this quasi-government/private corporation.

• Later in the 1950’s, (RID) acquired water rights from the Central Arizona Project (CAP) and the use of its open-canals.
• Both the SRP and the CAP agreements clearly indicate that (RID) is entitled to a set acre-foot of water derived from waste water, run-off and siphoned water – clearly not to be intended for potable use.
• To this day (RID) supplies its customers in the West Valley (predominantly below HWY I-10) with irrigation water.
• On August 9, 2010, this firm, with the assistance of an under-cover contractor, Entered the (RID) Buckeye office and asked a clerk, Ann, and two other employees about (RID)’s ability to provide potable water or intentions to provide potable water and received the response from all three office employees, “No”.
• It can be reasonably assumed that the increased conversion of the West Valley’s farm lands to sub-divisions the past 10-years that the customer-base of (RID) has significantly diminished and (RID) lacks the infrastructure, filtration and pipelines necessary to provide potable water to prospective customers.
• Inasmuch as some of SRP’s wells (from which (RID) siphons water) lie in or down-gradient from a ground-water pollution Plume possibly stemming from the 1980’s release of contaminants from the 59^th Street Motorola plant, these wells cannot efficiently and economically produce potable water so sorely required by (RID) to remain viable.
• (RID) retained  Gallagher & Kennedy, P.A. of Phoenix and specifically David Kimball and Stuart Kimball to devise a method through which it could raise the millions of capital to remake itself from an irrigation company into a company capable to deliver domestic water.

Background on (RID)’s retained attorneys:

• March 15, 1989, New Times wrote an article concerning Arizona’s Superfund in which David Kimball, at that time, chairman of the Arizona Chamber of Commerce environment committee was quoted as saying, “DEQ is between the proverbial rock and a hard place.  They’ve gone out and identified the big urban sites as the worst problems, but it’s a very difficult and complex process to establish direct linkages [between polluters and groundwater contamination] on those sites.  If they are anxious to recover costs, they need to target places where they can identify a [pollution source] fairly easily.” “Nevertheless, I have clients who’ve been represented as ‘high priority’ potential polluters when not one shred of hard evidence exists to say they’ve had a [contaminant] release.”
• As evidenced in the minutes of Arizona House of Representatives Committee on Commerce, February 4, 2009, David Kimball addressed questions concerning pollution and air quality issues and stated “imminent threat” might not mean “imminent”.
• April 1, 2009, the Verde Independent wrote an article concerning the appointment of Benjamin Grumbles as the director of the state Department of Environmental Quality – a move supported by David Kimball who, at the time, co-chaired the Environment Committee of the Arizona Chamber of Commerce and Industry.
• When Stuart Kimball was presented by a (DEFENDANT)’s ADEQ letter indicating no contaminants found on the (DEFENDANT)’s site, Stuart Kimball’s July 21, 2010 email response was, “After reading your letter, I believe my email yesterday is a sufficient response, noting that (RID)’s rights to pursue a CERCLA cost recovery action is not dependent on ADEQ’s willingness to pursue action against a facility”.
• It can be reasonably assumed that the political connections developed over the years between the Arizona legislators, the Governor’s office and the area of law concerning environmental issues make both David Kimball and Stuart Kimball a good selection by (RID) to represent it despite the fact that the Kimballs can clearly understand the (DEFENDANTS)’s difficulty in their defense as “hard evidence” is difficult to obtain – though (RID) has the same difficulty.

(RID) is using CERCLA liability to justify its suit:

CERCLA liability, however, is unsustainable due to the following:

1. The primary purpose of CERCLA is to ensure that all parties responsible for contamination bear the cost of remediation E.g., W.R. Grace & Co. v. Zotos Intern, 559 F.3d 85, 88-89 (2d Cir. 2009).  The statute is explained to encourage timely cleanup and to place the expense of that cleanup to the parties responsible for creating or maintaining the hazardous condition. Responsibility for mitigation expenses is not borne by the current property owner merely by virtue of owning or operating the property.
2. The Supreme Court has held in Burlington Northern et al v. U.S., 129 S.Ct. 1870 (2009) that the scope of liability is determined by the apportionment of harms when there is a reasonable basis for determining the contribution of each cause to a single harm.  Subsequently, (RID) must prove each (DEFENDANT) contributed the pollutants cited in the complaint.
3. Waste Management of Alameda County v. East Bay Regional Park Dist., 135 F.Supp.2d 1071 (N.D. Cal. 2001) in which the court ruled that – the simple fact of property ownership was not persuasive unless the current owner is responsible for the contamination or played some contributory role in the contamination.  In fact, in Gopher Oil Co. v. Union Oil Co. of Cal., 955 F.2d 519, 523, 527 (8^th Cir. 1992) it was found that the prior owner was responsible for contamination, current owner allocated zero liability.

• This firm could find nothing in CERCLA that would suggest or allow remediation costs to flow from a polluting owner to a current owner.
• In addition to the mis-application of CERCLA laws, (RID) is circumventing Arizona’s own A.R.S. 49, 283.e which is Arizona’s version of CERCLA.
• The above stated points may be the very reasons that ADEQ has chosen not to pursue this very suit under its own statutory authority and duties as outlined in A.R.S.

This suit, therefore, raises many questions – such as:

• Is the true motivation for this indiscriminate suit to raise needed capital for (RID) to remake itself as a domestic water supplier rather than irrigation water supplier?
• Who is paying the legal expenses incurred by (RID) with the services (this suit) of Gallagher and Kennedy?
• Why was a September 16, 2009 open-meeting held with all (DEFENDANTS) to discuss settlement rather than litigation?
• Why has there been no media attention to this matter when a prominent law firm files a $40 million suit against such local governments as the City of Phoenix, Maricopa County and Maricopa County Community College District?
• Why, when this firm brought this to the attention of several incumbent Arizona Senators and Representatives, was there either no response or a quick rebuff of “cannot help” or “do not want to be involved”?
• Why, when this firm attempted numerous times to meet with the Arizona Governor, was there no response?
• Why is there no response from the City of Phoenix councilmen, this firm contacted?
• Why has this firm met with so much resistance to its requests for a meeting with Ben Grumbles, Director of ADEQ?  Three distinct and pertinent questions must be answered fully and truthfully by ADEQ – such as:

1. Why did ADEQ resist the attempts of (RID) and David Kimball and Stuart Kimball to obtain ADEQ’s permission to perform an ERA for the entire 2009?
2. Why did ADEQ suddenly acquiesce to (RID)’s attempts this spring – which resulted in this suit?
3. If these 72 (DEFENDANTS) really definitely and factually pollute the groundwater as (RID) claims, why has the ADEQ failed to levy such claims rather than a private corporation, (RID)?
4. Why is the Federal EPA department not involved if this is a justified cause?
5. Why has ADEQ released letters to individual (DEFENDANTS) clearly stating that certain (DEFENDANTS) were “of no interest” to ADEQ yet David and Stuart Kimball refuse (documented proof exists, in at least one case) to release these “no interest” (DEFENDANTS) from this suit?
6. Will ADEQ rescind its authorization to (RID) to perform this interim ERA which seems to have provided Gallagher and Kennedy the momentum to initiate this “shotgun” suit which not only violates CERCLA laws but Arizona’s own A.R.S. 49, 283.e?

• Where is the City of Phoenix and Maricopa County going to find $40 million each?
• What taxes will be raised to feed this suit?
• Again, why have the voters and the taxpayers been deprived of the knowledge of this suit and why have the politicians who have been involved in this matter failed to inform the public?
• Have the politicians kept this quiet because they fear their re-election chances?
• When will the voters in this state seize the opportunity to “question boldly and firmly” their city, county and state representatives for answers to their involvement in this matter which has resulted in a suit used to generate revenue for (RID) at the expense of the voters’ tax dollars and the expense of small businesses which employ many many employees?
• Bottom-line, who makes the money in this suit and who loses money in this suit?  If the taxpayer cannot say “him/her self is the winner then it is clear he/her is the loser.  Yes?

S A Everly

Managing General Partner