The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION RE: BAC DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
The background of this case and relevant legal standards are described in the "Memorandum Decision and Order Re: BAC Defedants' Motion for Partial Summary Judgment [and] Daubert Motions," decided January 5, 2011, Doc. 982, and incorporated by this reference.*fn1
To demonstrate contaminant exposure via surface water, Plaintiffs theorize that contaminated water from a BAC retention pond migrated to an off-site canal and then to the Beachwood neighborhood. Specifically, Plaintiffs allege that contaminated water from the retort area (at the former BAC site) migrated to the retention pond at the former BAC Site, then moved through a pipe connecting the pond to the El Capitan Canal, and, finally, flowed from the canal to the Beachwood neighborhood with the April 2006 flood waters.*fn2 Plaintiffs also claim they were exposed to contaminants as a result of "fishing and swimming in the [El Capitan] Canal."
Plaintiffs' claims depend on the premise that contaminated water at the BAC site remains in a static state during its migration through organic material in several waterways and in the canal. This assumption is sharply disputed by the BAC Defendants' expert, geochemist Scott Fendorf, Ph.d., who opines that a substantial volume of organic materials present in the retention pond and the canal itself reduced hexavalent chromium to the less toxic and less mobile trivalent chromium. Dr. Laton, Plaintiff's hyrdologist, rejoins that Fendorf's opinions are unfounded and "misleading" because the "reduction statement is the reduction of chromium in soil, not surface water." He further opines that the 2008 and 2009 testing efforts revealed elevated chromium concentrations and that contamination from the BAC Site flowed into the El Capitan Canal "for twenty years prior to cleanup of the pond." This disagreement, among others, demonstrates a scientific dispute of fact that cannot be determined as a matter of law.
Defendants contend that Plaintiffs do not satisfy their Phase 1 burden on the surface water pathway because there is no evidence that any contaminant migrated from the BAC retention pond to the El Capitan Canal. According to Defendants, "no hexavalent chromium has been detected in the El Capitan canal and the concentrations of arsenic in the canal are within drinking water standards." Defendants also argue that the BAC Site did not flood in April 2006.*fn3
To support their motion, Defendants submit the expert testimony of Dr. Scott Fendorf, a geochemist and chair of the Environmental Earth System Science Department at Stanford University. Dr. Fendorf's report focuses on the properties of hexavalent chromium, namely that "geochemical conditions in the stormwater retention pond at the BAC site and the adjacent drainage canal are ideal environments for promotion [of] reduction of Chromium VI [hexavalent chromium] to Chromium III [trivalent chromium]." (Doc. 677-5 at ¶ 8.) It is undisputed that Chromium III (trivalent chromium) is less toxic than Chromium VI (hexavalent chromium).*fn4
Dr. Fendorf specifically delineates the existence and impact of "highly conducive" reductive conditions at the pond and canal:
The canal, anaerobic, both of wetland which are environment in of the pond matter, and the highly conducive rich chromium (III). to the reduction of organic is reduced, the chromium (VI) to solids that are Once effectively inert chromium and (III) forms re-oxidized under to chromium (VI) to any will not ...