LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 30
of the injuries they claimed. 114
Plaintiffs asserted a claim for the loss of drinking water services
as a result of chemical contamination emanating from the defendants’ operations. 115
The court
held that the drinking water standards promulgated by the New Mexico Water Quality Control
Commission (“NMWQCC”) should be used to determine if there was an injury-the loss of
drinking water services. 116
Under these rules, water must only meet the requisite standards with
regard to the level of contaminants; the water need not be pristine in order to qualify as
potable. 117
The plaintiffs, however, contended that the drinking water standards were not the
proper means of identifying the injury. The court disagreed, stating:
In effect, then, Plaintiffs now argue two different theories of injury: (1) that
“[t]he standard for drinking water quality for the groundwater involved in this
lawsuit is the more stringent NMWQCC health-based toxic pollutant standard”;
and (2) that “the groundwater and aquifer will remain injured unless and until it
is restored to its pre-contaminated condition.” These two assertions, often made
together, are not wholly congruent . . . In this case, it may well be that the State
of New Mexico has suffered an injury to its interest in the groundwater
underlying the South Valley Site, notwithstanding the fact that much of the
groundwater meets the New Mexico drinking water standards, but it may be that
the injury is not the total and permanent loss of drinking water services that
Plaintiffs now assert. To date, however, Plaintiffs have proffered no significant
probative evidence of any diminution in value of the groundwater, measured by
the difference between its current condition and its formerly pristine state, apart
from the alleged loss of drinking water services. No expert witness has testified
as to the economic value of water that may prove to be drinkable, but still not
pristine . . .Plaintiffs’ own characterization of their alleged injury selects the
legal standard to be applied to measure the existence and extent of that injury.
Drinkability does not equate with pristine purity under New Mexico law, and
the court remains convinced that a loss of drinking water services must be
measured by applying New Mexico drinking water standards. 118
114 335 F. Supp. 2d at 1212.
115 Id.
116 Id. at 1210.
117 Id.
118 Id. at 1211-1212 (emphasis original).
© 28
Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM