Abarca v. Franklin County Water Dist.

Citation761 F.Supp.2d 1007
Decision Date05 January 2011
Docket NumberNo. 1:07–CV–0388–OWW–DLB.,1:07–CV–0388–OWW–DLB.
PartiesABARCA, Raul Valencia, et al., Plaintiffs,v.FRANKLIN COUNTY WATER DISTRICT, Defendants.
CourtU.S. District Court — Eastern District of California


Brett Lee Runyon, Heather Sharon Cohen, Michael Edward Lehman, Marderosian, Runyon, Cercone, Lehman & Armo, Fresno, CA, Ricardo Echeverria, Michael John Bidart, Shernoff Bidart Echeverria, LLP, Claremont, CA, Thomas Vincent Girardi, Stephen G. Larson, Girardi and Keese, Los Angeles, CA, Jack Silver, Law Office of Jack Silver, Santa Rosa, CA, for Plaintiffs.Joseph A. Salazar, Jr., Yamin Thuzar Maung, Lewis Brisbois Bisgaard and Smith LLP, Carissa Marie Beecham, Best Best & Krieger, LLP, Sacramento, CA, Jeffrey Frank Oneal, Thomas S. Brazier, LaMore Brazier Riddle and Giampaoli, Randall C. Creech, Creech Liebow & Kraus, San Jose, CA, Robert Harry Greenfield, Greenfield, Hardy, El Dorado Hills, CA, Jan A. Greben, Danielle Lauren De Smeth, Greben & Associates, Santa Barbara, CA, Terry L. Allen, Berliner Cohen, Merced, CA, Eugene Tanaka, Melanie Donnelly, Best Best & Krieger LLP, David Allan Gifford, Gary T. Drummond, Steven, Drummond & Gifford, Walnut Creek, CA, Glenn Barger, Chapman, Glucksman, Dean, Roeb & Barger, Los Angeles, CA, Stephen E. Carroll, McCormick Barstow Sheppard Wayte and Carruth LLP, Scott D. Laird, Timothy Jones, John P. Kinsey, Jones Helsley PC, Fresno, CA, Donald Evan Sobelman, John F. Barg, Kathryn L. Oehlschlager, R. Morgan Gilhuly, Stephen C. Lewis, Barg Coffin Lewis and Trapp LLP, San Francisco, CA, Eric Martin Steinle, for Defendants.Michael G. Marderosian, Marderosian, Runyon, Cercone, Lehman & Armo, Fresno, CA.


OLIVER W. WANGER, District Judge.


This lawsuit arises out of a now-closed cooling tower manufacturing facility (the “BAC site”) that pressure treated wood and was operated by entities formerly owned by the BAC Defendants (“BAC”).1 Plaintiffs, current or former residents of residential neighborhoods (“Beachwood”) near the BAC Site,2 allege that two contaminants from the BAC Site migrated from the treating area via groundwater, surface water, surface soil, private well, and air pathways to locations where plaintiffs were exposed to them.3 Also named as defendants are various municipalities, water districts, and developers, including the Franklin County Water District, Merced Irrigation District, the City and County of Merced, and the Meadowbrook Water District.4

Before the court for decision is BAC Defendants' motion to summarily adjudicate Plaintiffs' tenth, twelfth, thirteenth, and fourteenth causes of action. According to Defendants, Plaintiffs have failed to present any admissible evidence of actual exposure to contaminants from the BAC site, via any pathway, which was required under “Phase 1” of the Court's “Order Modifying Scheduling Conference Order.” (Doc. 540.) The first phase of discovery was to focus on “whether contaminants from the former [ ] BAC Site, Franklin County Water District or the April 2006 Flood have ever reached any location where plaintiffs could have been exposed to them, and if so, when such contaminants arrived, how such contaminants arrived at the location, how long they were present, and at what levels they were present.” ( Id. at 1:14–1:28.) By this motion, the BAC Defendants assert that Plaintiffs have not met their “Phase 1” or “general exposure” burden, entitling them to partial summary judgment.

Plaintiffs opposed the motion on July 1, 2010, submitting over 3,000 pages of documentation and 168 exhibits. Plaintiffs' opposition is founded on their claim that they have presented “substantial evidence” in the form of expert opinion and analysis to show that contaminants migrated from the BAC facility to Plaintiffs' homes and/or properties. Plaintiffs further argue that the BAC Defendants' motions to exclude certain expert testimony fail because their criticisms go to its weight, not its admissibility.

Oral argument on the BAC Defendants' motions was held on October 6, 7, 13, 14, and 15, 2010, during which the parties presented argument and evidence relevant to the Phase 1 pathway exposure issues. The parties were permitted to introduce expert testimony on key scientific issues, namely the methodologies and assumptions used to model contamination via the groundwater and air pathways. The testifying experts were examined by counsel for Plaintiffs and Defendants, as well as the Court.5

On October 22 and November 1, 2010, the parties were advised the Court intended to appoint independent experts under Fed.R.Evid. 706 to assist in the understanding and resolving the complex scientific disputes over groundwater and air modeling. The analysis included determining concentration levels of hexavalent chromium and/or arsenic in Meadowbrook Well No. 2 and surrounding areas (i.e., monitor networks and private wells), as well as the assumptions/calculations underlying the air model. The Fed.R.Evid. 706 Experts were appointed on October, 26. 2010 (Kenneth D. Schmidt, Ph.D.—groundwater) and November 1, 2010 (Chatten Cowherd Jr., Ph.D. and Richard Countess, Ph.D.—air).6 The parties and the Court jointly prepared a list of questions for the experts, which were transmitted to the experts in early November. The independent expert reports were submitted to the Court on November 22, 2010.7

The Fed.R.Evid. 706 experts were examined by the Court and parties on December 2, 3, and 15, 2010. Rebuttal testimony was permitted on a limited basis.8

The Rule 56 motions were submitted for decision following summation arguments on December 28 and 29, 2010.


The facts underlying this case are summarized in the Court's previous Memorandum Decisions in this case, filed on November 13, 2008, May 18, 2009, and July 15, 2009, in brief: 10 approximately 2,100 Plaintiffs seek damages relating to two occurrences: (1) an April 2006 flood; and (2) alleged long-term contamination released from the former site of a cooling tower manufacturing facility operated by entities formerly owned by the BAC Defendants. The now-closed facility, which is the alleged source of contamination, is located in Merced, California, approximately 1,600 feet southwest from Meadowbrook Well No. 2 (“MWC–2”), which was the primary well supplying domestic water to the Beachwood community, until it was taken out of service in March 2008. Plaintiffs allege that MWC–2, which was operated by the Meadowbrook Water District, was contaminated by hexavalent chromium and total chromium in the well and from the aquifer, which drew on the contaminated plume during times of high water production, and exposed Plaintiffs to contaminants. 11

It is further alleged that the remaining defendants contributed to Plaintiffs' exposure to carcinogens and/or toxins based on their operation of a nearby drainage system (City and County of Merced), a collection system and ponds (Franklin County Water District), and an irrigation canal (Merced Irrigation District).12 According to Plaintiffs, these municipalities and water districts were “direct participants” in the contamination based on their location and significance to the local community's water supply.

A. History and Remediation of BAC Site

From 1969 until 1984, the BAC Site housed a cooling tower manufacturing facility and BAC–Pritchard, Inc., the operator/owner, used pressure-treated wood to make cooling tower frames.13 The wood was treated in an on-site cylindrical vessel (retort), using two different solutions. Specifically, from 1969 until 1980, the wood was treated with a solution of chromium, copper, and arsenic (“CCA”). In 1980, BAC–Pritchard stopped using arsenic and instead used a solution of acid, copper, and chromium (“ACC”). BAC–Pritchard ceased treating wood at the site in May 1991 and the facility was closed in early 1994.14

The BAC Defendants acknowledge that elevated levels of hexavalent chromium and arsenic were discovered at the BAC Site as early as 1986. That same year, BAC Defendants hired an environmental consultant to investigate and implement a number of remedial measures associated with contamination at the Site. The retained consultant found elevated levels of hexavalent chromium and arsenic in the soil at the BAC Site. Subsequent consultants found hexavalent chromium and arsenic in groundwater beneath the Site and in a stormwater pond located on the southeastern portion of the Site.15

In 1991, IT Corporation, a remediation consultant hired by Merck and Amsted, completed a “clean closure” of the storm water pond. The closure involved excavating contaminated soil from the pond and disposing of it at a landfill under the supervision of the California Department of Toxic Substances Control (“DTSC”). In 1993 and 1994, IT Corp., under the supervision of the Regional Water Quality Control Board (“RWQCB”), installed a pump-and-treat groundwater remediation system to control migration of contaminants beneath and off of the Site and to remove hexavalent chromium and arsenic from groundwater. IT Corp. continued to expand and modify the groundwater treatment system through 2005.

In 1994, as part of the cleanup efforts, IT Corp. prepared a health risk assessment for the BAC Site. According to BAC Defendants, the health risk assessment employed “conservative exposure assumptions” to protect public health and was premised on the fact that no further remediation would take place. Based on these assumptions, IT Corp. determined that contamination at the Site created a cancer risk of two in one million (ratio of 2:1,000,000). The BAC Defendants assert that the DTSC employs a ratio of one in one million (1:1,000,000) to determine whether additional remediation should be performed.16

IT Corp.'s risk assessment did not evaluate the risk posed by the Site in the past (pre–1994), but looked prospectively at the future risk the Site...

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