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Abarca, Raul Valencia, et al v. Franklin County Water District


January 6, 2011


The opinion of the court was delivered by: Oliver W. Wanger United States District Judge



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


A. Surface Water Pathway

1. Introduction

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.

2. Merits

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 be the conditions present in the pond significant and the canal. extent (Id.)

Dr. Fendorf further analyzes the reductive conditions at the El Capitan Canal:

Chromium reduced in that the moves pond, through and thereafter the water column, is not would canal.encounter a similar geochemical enters the canal, The canal environment the leading to further has similar in (VI) to chromium (III). any remaining chromium thus reduction of wetland attributes, In fact, conditions the pond and canal provide nearly optimal geochemical state. chromium(VI) and transfer it into the chromium to arrest (III) (Id. at ¶ 10.)

Dr. Fendorf states that soil samples taken from the storm water pond and pond water column confirm the reduction of hexavalent chromium to trivalent chromium:

demonstrate Analyses of that the sediments chromium and (VI) soils has in the pond sediments significantly to chromium in both been reduced (III) the pond and in pond water analyzed six soil the samples column. from Dames & Moore retention pond in 1989 and collected found the stormwater than 95 percent of that all greater average reduction reduction of percent. total chromium, had an 99 per Even a sample with with 2,000 milligrams of chromium better than 99 percent reduction kilogram (with only of soil mg/Kg had chromium (VI) remaining). 0.5 Dames chromium and (VI) Moore in also the found pond that water the concentration of micrograms per liter near the dropped from 250 fromthe the BAC Site entered the pond) inlet to (where storm at detection water enter outlet canal). pipe (where below the Accordingly, water could exit the the pond and (VI) is highly conducive anaerobic environment the reduction of of the wetland/pond on both aqueous chromium to to the phase data chromium from the (III), pond water based column soils/sediments. and the solid phase data from the pond (Id. at ¶ 9.)

Defendants assert that the significance of Dr. Fendorf's opinions is that:

[O]ne hexavalent cannotchromium extrapolate from concentrations of concentrations in the canal present or elsewhere in the pond to canal will undergo reduction to trivalent chromium. because any hexavalent chromium in pond downstream the and the (Doc. 677-1 at 24:13-24:16.)

Defendants next rely on specific sampling evidence near the Beachwood neighborhood to demonstrate an absence of surface water contamination. According to Dr. Stephens, a geologist retained by the BAC Defendants, soil samples from the Beachwood neighborhood are within background levels for total chromium and arsenic:

In consultant, the Beachwood ERM, collected neighborhood, Merck's and Amsted's deep, Four soil surface in February 2009. shallow soil samples inches were collected from samples, two locations: less than 6 County Church District at 2909 and the Gospel Franklin Defenders Beachwood at Drive North the Drake Water The samples were office analyzed for 2115 arsenic, Avenue. hexavalent pentachlorophenol ("PCP"). chromium, The copper, and found in these soils were milligrams maximum concentrations ("mg/kg," equivalent 5.4 million) per kilogram chromium, 26.2 mg/kg for total chromium, to parts per non-detect for hexavalent arsenic, for chromium mg/kg for (at a detection limit limit copper, micrograms and non-detect for of 0.001 58.7 PCP (at mg/kg), detection 19.6 of a soil sample a potential per kilogram detection [ig/kg]). for hexavalent One chromium, showed sample was but reanalyzed that detection using a was more not sensitive confirmed method when the a lower detection limit. with [T]he that the results entire of range the of testing concentrations at GDC and FCWD [] show published arsenic detected at GDC concentrations and FCWD are chromium in well of background within the and the United States. California and (Doc. 697 at ¶¶ 17-19.)

Dr. Stephens further opines that before the BAC stormwater pond was clean-closed in 1992, sampling at the pond was below actionable levels. He also states that any water flowing to the El Capitan Canal from the retention pond is diluted by existing canal water:

Before sample the of stormwater BAC stormwater pond was to the closed irrigation in 1992, canal one was per collected liter with the discharge for following results: micrograms chromium, non-detect (ig/L) arsenic, 11 for hexavalent 180 ig/L for total & Moore, limit of 50 These ig/L), 410 ig/L chromium (at 1989). and are above for coppera (Dames detection results drinking water pond but water via standards, BAC water in culvert would leaving the other the the El Capitan likely Canal. be highly stormwater Between diluted by 1992 and stormwater pond, BAC pond (CRWQCB, 2009; Merck, samples 2007, 25 after cleanup discharge and closure of the stormwater 2006). were collected the from the of metals one of chromium sample With exception in these in current California drinking water standards. concern samples 1994, concentrations have been well of below all (Doc. 697-5 at ¶ 26.)

In sum, according to Defendants, in the past eighteen years, no actionable hexavalent chromium has been detected in the El Capitan Canal and the concentrations of arsenic in the canal are within drinking water standards. In addition to this test data revealing an absence of contamination, there is undisputed expert testimony that the hexavalent chromium in the retention pond and canal reduces to trivalent chromium given the presence of organic matter.

Plaintiffs rely on two alleged facts to support their Phase 1 burden concerning surface water exposure: (1) an alleged pathway between the BAC retention pond and the El Capitan irrigation canal through an open pipe; and (2) the pre-1991 detections of hexavalent chromium in the retention pond. According to Plaintiffs, taking these two facts together, one can infer that contaminated water from the retention pond migrated to the canal, where it migrated to the Beachwood neighborhood with the April 2006 flood waters.

During oral argument on December 29, 2010, Plaintiffs' counsel stated that Dr. Laton, Plaintiffs' hydrologist, provided "an opinion as to the level of chromium that he believed existed in the canal on the day of this flooding." (Rough RT, Dec. 29, 2010 at 169:7-169:8.) Specifically, Dr. Laton opines that the El Capitan Canal contained high levels of chromium contamination for "more than twenty years." According to Laton, the chromium contamination in the El Capitan Canal reached 1,491 ug/l because "the pond water was allowed to flow unimpeded into the EL Capitan Canal." (Doc. 778 at ¶ 27.)

The substance of Dr. Laton's opinions is that Defendants "misled" the Court because Dr. Fendorf analyzed soil samples not surface water samples:

The stating defendants in are attempting to 99 their of mislead the by than percent discussion surface court, of chromium found in water the stormwater that more percent reduction statement is is referring trivalent retention In fact, pond what had Fendorf been reduced to chromium. the reduction to with of chromium his 99 in undisputable. soil, not Total surface water. The data is detected as high as 1,490 chromium ug/l in the pond real drinking water MCL of 50 ug/l for total chromium. in 1989, well water above was (Doc. 778 at ¶ 28.)

Dr. Laton also minimized the impact of the 2008 and 2009 samples, and criticized the credibility of the testing efforts of by the BAC Defendants:

The defendants also argue that chromium has not been detected collected above drinking water standards in canal samples fail to advise downstream the Court of the is pond. that What the defendants collected in 2008 and these been cleaned. 2009, almost 20 samples were pond had canal They provide years no after the concentrations between 1969 and in the period for when chemicals water during the data 1991 the environment. the In of fact, concern the were being released into Merck defendants inexcusablenever sampled aware in light of the the canal fact at that any Merck time. This is extraordinary of the connection levels of contamination of the pond to was documented the canal and well that the pond. in (Id. at ¶ 29.)

Dr. Laton further stated:

I to have collect also any seen offsite no evidence that Merck ever attempted Beachwood neighborhood environmental including soil, testing sediment data in tap the water samples. or (Id at ¶ 31.)

The evidence introduced by the parties on surface water pathway is conflicting and susceptible of at least two reasonable scientific interpretations. According to Dr. Laton, the contaminated water from the retention pond flowed unimpeded into the EL Capitan Canal for twenty years, at concentrations reaching 1,491 ug/l (chromium) and 630 ug/l (hexavalent chromium). No testing was done prior to 1992 and since, allegedly inadequate testing. Dr. Laton minimizes Dr. Fendorf's soil analysis, opining that soil sampling does not demonstrate the high frequency of chemical reduction described in Dr. Fendorf's expert report.*fn5 Dr. Laton's opinions concerning Merck's credibility, diligence and testing efforts, are marginally relevant to the scientific inquiry, and are not expressed in terms of an applicable standard of scientific care. Drawing inferences in Plaintiffs' favor, if Laton's foundation for and opinions are believed, a dispute arguably exists whether contaminated water from the retention pond reached the El Capitan Canal during the relevant time period.

Laton's opinions concerning the 2009 testing at the FCWD and GDC also demonstrate a factual dispute. Plaintiffs' interpretation of test results is that contamination was present during the relevant time-frame; Laton opines that the testing was twenty years tardy and, in any event, is not scientifically sound to exclude the likelihood that chromium contamination reached the El Capitan Canal at actionable levels during the relevant time-frame. Although these tests were within background levels, below the California MCL for total chromium, no samples were taken at the El Capitan Canal or connected water pathway to exclude the presence of alleged contamination. The issue of reasonable scientific contamination is disputed. In view of Dr. Laton's competing scientific observations and opinion, the surface water pathway issues cannot now be decided as a matter of law.

The purpose of Phase 1 was to identify the scientific evidence and determine general exposure of contamination via specified pathways, including surface water. This is an exceedingly close call in view of Dr. Fendorf's expert opinions re: the impact of organic matter on hexavelant chromium (reduction to trivalent chromium), however, a jury must decide whether Dr. Laton's scientific disagreement has any merit. On the current record, this scientific factual dispute as to the surface water pathway cannot be decided as a matter of law.

Defendants' motion for partial summary judgment on the surface water pathway is DENIED.

B. Surface Soil Pathway

As the determination of the surface soil pathway turns on the admissibility and the Sears' air model, as well as the expert testimony of Dr. Laton, the motion is DENIED for the same reasons identified in those Memorandum Decisions. There are scientific factual disputes concerning whether contaminant material from the BAC Site migrated and settled - via airborne and flood pathways -on Plaintiffs' property.


For the reasons stated:

1. The BAC Defendants' motion is DENIED as to the surface water pathway; and

2. The BAC Defendants' motion is DENIED as to the surface soil pathway.



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