In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation

Filing 4062

RULE 56.1 STATEMENT. Document filed by Arco Chemical Company (Doe 201), Atlantic Richfield Company, Inc., BP Products North America, Inc., BP West Coast LLC (Doe 3), Equilon Enterprises LLC,, Lyondell Chemical Company,, Shell Oil Company, Inc., Tesoro Refining and Marketing Compnay, Inc.,, Texaco Refining and Marketing Inc.,, Union Oil Company of California,, Unocal Corporation,. Filed In Associated Cases: 1:00-cv-01898-SAS-DCF, 1:04-cv-04968-SAS(Condron, Peter)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK In re: Methyl tertiary Butyl Ether (“MtBE”) Products Liability Litigation MDL No. 1358 (SAS) M21-88 This Document Relates To: Orange County Water District v. Unocal Corporation, et al., Case No. 04 Civ. 4968 (SAS) CERTAIN DEFENDANTS’ REPLY TO PLAINTIFF ORANGE COUNTY WATER DISTRICT’S LOCAL RULE 56.1 STATEMENT OF DISPUTED AND MATERIAL FACTS IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF INJURY AND DAMAGES AT CERTAIN TRIAL SITES On June 6, 2014, Certain Defendants filed a Motion for Partial Summary Judgment due to Lack of Injury and Damages at Certain Trial Sites (“Motion”) and a Local Rule 56.1 Statement of Material Facts Submitted in Support of Defendants’ Motion (“Defendants’ Statement of Facts”). On July 21, 2014, Plaintiff Orange County Water District (“Plaintiff”) filed its Opposition to Defendants’ Motion (“Opposition” or “Opp.”) and a Local Rule 56.1 Statement of Material Facts Submitted in Opposition to Defendants’ Motion for Summary Judgment due to Lack of Injury and Damages at Certain Trial Sites (“Plaintiff’s Response”). The Opposition incorporated additional arguments and material. “[R]eply papers may properly address new issues raised in the opposition papers so as to avoid giving unfair advantage to the answering party.” Bayway Ref. Co. v. Oxygenated Mktg. & Trading A.G., 215 F.3d 219, 226-27 (2d Cir. 2000). Accordingly, defendants hereby respectfully submit their Reply to Plaintiff’s Response, including the “Additional Material Facts” submitted by Plaintiff in opposition to Defendants’ Motion for Summary Judgment. DEFENDANTS’ STATEMENT OF FACTS 1. Four trial sites designated by Plaintiff Orange County Water District ("OCWD") are at issue in this motion: (1) the former Beacon Bay Auto Wash at 10035 Ellis Avenue, Fountain Valley ("Beacon Bay FV"); (2) Unocal #5399, 9525 Warner Avenue, Huntington Beach ("Unocal #5399"); (3) Unocal #5123, 14972 Springdale Street, Huntington Beach ("Unocal #5123"); and (4) Thrifty 368, 6311 Westminster Boulevard, Westminster ("Thrifty 368"). OCWD's testifying hydrogeology expert Anthony Brown states that, with regard to the "Focus Sites" at issue, it "will need to implement additional investigation and remediation activities ... to mitigate the ongoing threat to the drinking water resources managed by the OCWD." Declaration of Peter C. Condron ("Condron Decl."), Exh. 1 (Expert Report of Anthony Brown, at 2). PLAINTIFF’S RESPONSE 1. Undisputed as to testimony, otherwise Disputed. DEFENDANTS’ REPLY 1. OCWD’s dispute is illusory and immaterial. Plaintiff does not dispute the testimony provided by Brown. The District designated Focus None of the testimony cited by Plumes for trial in this matter, plaintiff in response to the and each station at issue in this undisputed fact cited by motion is associated with moving Defendants pertains to Focus Plume that contains the four stations at issue on other gasoline stations. this motion. Brown’s Exhibit (Declaration of David Bolin 36 (Condron Decl. Exh. 2) and (July 21, 2014) ¶¶ 2-4 and Brown’s testimony indicate Ex. 1 attached thereto (Bolin that Brown could not Decl.).) The District determine that it was “more associated stations with likely than not” that additional "plumes" because "they are in remediation activities were proximity to one another and required at any of the four in proximity to the wells that stations at issue on this are listed" and "because motion. Condron Decl, Exh. 3 contamination, MTBE and (Brown Dep., at 1359:21TBA contamination identified 1360:8; 1364:13-1365: 17) at these sites are believed to (Beacon Bay FV); (Brown have commingled or could Dep. at 920:19-921:7) (Unocal commingle and consequently #5399); (Brown Dep. at referred to as the focus 1034:2-13; (Brown Dep. at plumes." (O'Reilly Decl., 1036:3-14; Brown Dep. at Ex. 1, Bolin Depo. (July 30, 1037:13-18) (Unocal #5123); 2008) at 72:11-73:15.) Condron Decl. Exh. 2 (Brown Exh. 36, for Thrifty 383: Q19, Beacon Bay is associated with Q20) (indicating that no Plume No.3, Unocal #5399 is additional on-site or off-site associated with Plume No.1, remediation is necessary). and Unocal #5123 and Thrifty #368 are associated with The Bolin Declaration does Plume No.9. (Bolin Decl. ¶¶2- not identify any additional 4.) remediation work or possible threat posed to drinking water Mr. Brown confirmed that wells or a deeper aquifer by sufficient MTBE had migrated any of the stations at issue on off-site from each of these this motion. Likewise, the four stations that additional Bolin Declaration does not remediation actions were identify a single item of cost warranted. (Condron Decl. or expense incurred at any of Exh. 2 (Exhibit 36 to the the stations at issue on this 2 DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE DEFENDANTS’ REPLY Deposition of Anthony Brown ("Brown Exh. 36").) Mr. Brown testified that the District would need to spend at least $80,000 per station to determine the nature and extent of any further remedial actions that may be needed. (O'Reilly Decl., Ex. 2, Expert Report of Anthony Brown and Robert Stollar (May 28, 2011) at Appendices B.6, B.l0, B.16, and B.18.) motion. See Exh. 14 to the Declaration of Justin Massey, submitted in opposition to Defendants’ Omnibus Motion for Summary Judgment (showing that OCWD paid consultant to perform CPT testing at 10 sites (A-J), none of which is at issue on this motion.) Neither Wheatcraft’s model nor his testimony identifies any need for remediation at these stations, and he testified The District has already that he was unable to make incurred substantial costs to any connection between a conduct CPT and other release of MTBE gasoline groundwater sampling at from any of the stations at plumes associated with these stations, as well as other non- issue on this motion and any drinking water well or the station specific costs. (Bolin deeper aquifer. (Jan. 16, 2012 Decl. ¶ 7.) Deposition of Stephen Mr. Brown "was asked to Wheatcraft), p. 115:23-24 (“I determine data gaps at the didn’t breakdown any of the sites and what work would be analysis that I did by station”); necessary to complete Id., p. 116:22-117:20 (“Q. investigation and remediation And did you, for purposes of at these sites and determine the work that you performed the costs." (O'Reilly Decl., in this case, at any time where Ex. 3, Brown Depo. (Feb. 1, there are several service 2012) at 1192:20-1193:2.) stations potentially impacting grids, model the individual Dr. Wheatcraft was retained to stations to determine what prepare a groundwater impact they may have in the contaminant transport model future on potable water of the MTBE released from supplies? [Objection] THE focus sites. (Declaration of WITNESS: We haven’t done Stephen W. Wheatcraft, Ph.D. any models in which we in Support of Plaintiff's isolated a particular source Opposition to Motion for and ran only that source, no. Summary Judgment (July BY MR. STACK: Q. Did you, 21,2014) ¶¶ 1-3 (Wheacraft in the course of your work, do Decl.) Dr. Wheatcraft any analysis in which you 3 DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE DEFENDANTS’ REPLY allocated responsibility from several service stations Q. Are you saying, basically, impacting grid cells in your that your work is showing model to assign a percentage the potential of the responsibility for consequences if action is contamination being detected not taken to remediate to at some future date in a take care of the plumes, potable water supply well? and you understood that to [Objection] THE WITNESS: be your primary purpose? No, we -- we did not analyze or isolate any particular station A. Yes. And, actually, that's in the course of our analysis in exactly correct. modeling.”); Id., p. 122:1-4 (“[W]e didn’t analyze, again, (O'Reilly Decl., Ex. 4, which – whether it was Wheatcraft Depo. (Jan. 17, coming from this particular 2012) 249:19-24; 250:10-15 site or that site in terms of an [model "illustrate[s] a origin. That wasn’t a question significant need for action"].) we were looking at.”); Roy Dec., Ex. 73 (Jan. 17, 2012 "A significant amount of Wheatcraft Depo.), pp. MTBE has been released to 368:19-369:9 (“THE groundwater within" the WITNESS: I haven’t done any District's service area, and analysis. As we, again, talked "[t]his MTBE, if not about yesterday, that identifies remediated, will impact water MTBE from a specific station production wells ... " (O'Reilly and whether it mingles or Decl., Ex.5, Expert Report of commingles with other plumes Stephen W. Wheatcraft, Ph.D. and whether or not MTBE (June 22, 2011) at ¶¶ 2-3, p. from a particular station 8.) Wheatcraft's model shows reaches a particular well.”); that MTBE has impacted or Id., p. 370:2-5 (“I haven’t will impact all of the drinking done any analysis to identify water wells associated with which station or stations is plumes which contain the four responsible or are responsible focus sites at issue in this for MTBE concentrations in motion. (Wheatcraft Decl. specific production wells.”); ¶ 8.) Specifically, "the MTBE Id., p. 370:9-18 (“Is it true that transport model predicts . . . you do not have an opinion 108 district production wells whether or not gasoline [will] exceed 5.0 ug/l MTBE containing MTBE from that [originating from the focus site has in the past reached any plume stations, including these drinking water well in Orange four stations] after 10 years testified: 4 DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE DEFENDANTS’ REPLY ...." (Id.) Sampling and vulnerability studies conducted by the District confirm that MTBE has been detected in over fifty-six drinking water wells throughout the District's service area since 2010. (Bolin Decl. ¶ 6.) County Water District? [Objection] THE WITNESS: I haven't formulated any opinion.”); Id., pp. 371:20372:5 (“I haven’t performed any analysis to look at any individual station as to whether -- what the pathway is from that station to any ultimate well.”); Id., p. 372:720 (“I don’t have a specific opinion as to which station contributes MTBE to which production well. So I’m – I’m – that’s stated a little differently than what you said, but that’s my answer to your question.”); Id., p. 405:11405:21 (“I haven’t done any analysis to isolate whether MTBE -- the MTBE from a specific station has reached any specific production well.”) Dr. Fogg similarly concluded that "significant MTBE mass [is present] beyond the monitoring well networks ... " of the stations, and that the only way to prevent this MTBE from reaching public drinking water wells is to clean up the [MTBE] contamination before it gets to supply wells." (O'Reilly Decl., Ex. 6, Fogg Depo. (Jan. 21, 2012) at 110:9-24.) The District's principle [sic] hydrogeologist confirmed: "Each focus plume (with associated stations) is located within a pumping depression [of a major supply well or wells]. Based on the prevalent downward hydraulic gradient beneath each station, MTBE that has migrated off-site from each station will move downward into the principal aquifer and be carried to the pumping wells that created the pumping depressions." (Declaration of Roy Herndon in Support of Plaintiff Orange County Water District's 5 Fogg provided no opinion as to whether any of the stations at issue on this motion require any additional remediation or whether they pose a threat to any drinking water well or aquifer. Condron Reply Decl. Exh. 2 (Fogg Dep., Jan. 21, 2012, at 59:17-60:4 (“Q. Other than looking at site data that was in other expert reports, have you done any analysis of any individual gasoline site in this case? A. No.”); 78:23-25 (“As I said earlier, I have not investigated specific sites and provided a specific opinion on adequacy of monitoring at specific sites.”); 91:19-92:3 (Q. Do you have an opinion, DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE Opposition to Omnibus Motion for Summary Judgment (July 21,2014) ¶ 3 ("Herndon Decl.").) DEFENDANTS’ REPLY Dr. Fogg, that MTBE from any of the 34 stations in this case poses a short- or longterm threat of MTBE contamination to any particular well in Orange County Water District? [Objection] A. I – my opinions are not that specific.”); 98:711 (“If you mean that I don't have an opinion that a specific contaminant site can be anticipated to contribute MTBE to a specific water supply well or wells, that's correct, that my opinion is not that specific.”); 112:2-9 (“Q. Are there any specific sites where you have the opinion that the MTBE mass has migrated beyond the monitoring well network? {Objection] THE WITNESS: That's beyond the scope of my testimony.”); 116:8-10 “Opinions on specific stations and plumes are beyond the scope of my opinions and testimony.”)) Herndon’s declaration also fails to provide any information specific to these stations as to the need for further remediation or the existence of any threat to a water supply well or aquifer from the stations at issue on this motion. 2. Brown provided a lengthy expert report and a rebuttal report in this case, but he also produced a chart at his 2. Undisputed. 6 3. Undisputed. DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE DEFENDANTS’ REPLY deposition, which was marked as Exhibit 36. Condron Decl. Exh. 2 (Exhibit 36 to the Deposition of Anthony Brown ("Brown Exh. 36"); Condron Decl. Exh. 3 (Deposition of Anthony Brown ("Brown Dep.") at 218: 15-219: 13' 257:24-258: 14.) 3. Exhibit 36 summarized Brown's most up-to-date opinions as to whether a series of 22 propositions are "more likely than not" true for each of the Focus Sites he examined. Exhibit 36 contained the opinions that Brown would offer at trial and, to the extent they differed from those in his expert report, the opinions expressed in Exhibit 36 and his deposition testimony superseded the opinions in his expert report. Condron Decl. Exh. 3 (Brown Dep. at 668:5-6,639:19-20). 3. Disputed The detailed analysis, assessment, and basis for opinions set forth in Mr. Brown's expert report and deposition testimony is not reflected in Exhibit 36. (O'Reilly Decl., Ex. 2, Expert Report of Anthony Brown and Robert Stollar (May 28, 2011) at Appendix B.6.) Brown Exh. 36 does not "summarize" Mr. Brown's opinions. His opinions include his reasoning and analysis. Exhibit 36 simply uses a single symbol to reflect Mr. Brown's conclusions in 22 different categories. Brown Exh. 36 does not discuss the relationship between the categories or the reasons for the conclusions. (O'Reilly Decl., Ex. 3, Brown Depo. (Dec. 29, 2011) at 30:2030:24.) Brown Exh. 36 is merely a roadmap or key to the opinions. As demonstrated below, Mr. Brown's opinions are specific 7 3. OCWD’s dispute is illusory and immaterial. Brown testified that the opinions expressed in Ex. 36 were his “current opinions,” that they modified the opinions in his expert report to the extent they conflicted, and that the opinions expressed in Exhibit 36 would be the opinions he would offer at trial. Condron Decl. Exh. 3 (Brown Dep. at 668:5-6, 639:19-20). Condron Reply Decl. Exh. 3 (Brown Dep. 1065:16-1066:16) (“And I've made the clarification that where an opinion that's presented on Exhibit 36 is perhaps in conflict with an opinion in the report, the opinion on Exhibit 36 takes precedence and essentially ‘trumps’ -- I think the word was used -- any opinion within the reports”); 1325:5-12 (“the only caveat I would provide is if there are any conflicts between the opinions I've provided in Exhibit 36, and anything that can be construed as an opinion in my summary report, the Exhibit 36 DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE to each station and take into consideration a multitude of station specific factors. Mr. Brown's opinions are, therefore, not as generic as presented by defendants. 4. For each of the 22 propositions in Exhibit 36, as applied to each Focus Site, Brown indicated "Y" if the proposition was more likely than not true; "N" if the proposition was likely not true; or "P" (for "possible") "[i]f we could not determine that it was more likely than not .... " Condron Decl. Exh. 3 (Brown Dep. at 639:7-10). 4. Disputed The "Yes" and "Possible" symbols in Brown Exh. 36 are not as absolute or conclusive as suggested by defendants. The "Notes" on Brown Exh. 36 clearly indicate that some of the "Y" and "P" symbols are qualified or tentative because of important gaps in the data needed to affirm the opinion. (O'Reilly Decl., Ex. 3, Brown Depo. (Dec. 29, 2011) at 30:20-30:24.) With respect to Unocal #5123, for example, virtually all of Mr. Brown's "Yes" or "Possible" entries are qualified due to the fact that MTBE has not been analyzed for since 1997. 8 DEFENDANTS’ REPLY opinions, would be the most current and would take precedence over any conflicting opinions presented in the summary report”); 1413:16-21 (“Where the opinions expressed within Exhibit 36 are in conflict or could be perceived as being in conflict with any opinion or comment made in the expert report, the opinions on Exhibit 36 are my current opinions and would take precedence over any of -- conflicting statements made in my opinion report.”) 4. OCWD’s dispute is illusory and immaterial. Brown’s testimony speaks for itself, and the testimony from Brown that plaintiff submits does not contradict or controvert Defendants’ undisputed fact. Expert testimony that merely states that an injury or damages are “possible” is insufficient to carry plaintiff’s burden. Cal. Civ. Code § 3283. Accord Vestar Dev. II, LLC v. General Dynamics Corp., 249 F.3d 958, 961 (9th Cir. 2001) (“[i]t has long been settled in California that ‘the proof must establish with reasonable certainty and probability that damages will result in the future to the person wronged’”), quoting Caminetti v. Manierre, 23 Cal.2d 94, 101, 142 P.2d 741, 745 (1943); Frustuck v. City of DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE DEFENDANTS’ REPLY Fairfax, 212 Cal. App. 2d 345, 367-68 (1st Dist. 1963) (“damages which are speculative … or merely possible cannot serve as a legal basis for recovery”). 5. Brown testified that the term "threat" "would be defined as the contamination that has resulted from a release at a particular facility could potentially either impact aquifers that would be used for or potentially used for drinking water supply, and that's reflected in question or opinion 21 on my summary table." Condron Decl. Exh. 3 (Brown Dep, at 638:2-8). Brown testified that a "threat" would include "contamination [that] could potentially impact [a] water supply well." Condron Decl. Exh. 3 (Brown Dep. at 638:14-15). 5. OCWD’s dispute is illusory and immaterial. Plaintiff fails to controvert the undisputed testimony Defendants fail to include Defendants cite. Expert important testimony from Mr. testimony that merely states Brown indicating the limits of that an injury or damages are the "threat" analysis that he “possible” is insufficient to performed which was carry plaintiff’s burden. Cal. preliminary and limited: Civ. Code § 3283. Accord Vestar Dev. II, LLC v. General In evaluating each of the Dynamics Corp., 249 F.3d specific service stations, I 958, 961 (9th Cir. 2001) (“[i]t would obviously look at has long been settled in the historical and current California that ‘the proof must contaminant concentration establish with reasonable data, groundwater flow certainty and probability that direction, the remediation damages will result in the activities that have future to the person occurred at the site. And wronged’”), quoting Caminetti based upon that and v. Manierre, 23 Cal.2d 94, potential data gaps that 101, 142 P.2d 741, 745 exist, I would attempt to (1943); Frustuck v. City of reach a conclusion that it Fairfax, 212 Cal. App. 2d 345, is more likely than not 367-68 (1st Dist. 1963) that the contaminants do (“damages which are … pose a threat to water merely possible cannot serve supply wells. as a legal basis for recovery”). 5. Undisputed as to text of testimony, otherwise Disputed. (O'Reilly Decl., Ex. 3, Brown Depo (Jan. 2, 2012) at 441:8442:1.) Mr. Brown further explained that: As I have discussed in response to earlier questions, if we believe 9 DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE DEFENDANTS’ REPLY that it was more likely than not the contamination posed a threat, then in response to question No. 22, the answer would be "Yes." If we believe that the contamination did not pose a threat, then the answer would be "No." If we could not determine that it was more likely than not that the contamination posed a threat, but also not determine that it was more likely than not that it did not pose a threat, then it was left as a "Possible." (O'Reilly Decl., Ex. 3, Brown Depo (Jan. 3, 2012) 638:25639:11 [emphasis added].) Mr. Brown also testified that the lack of "vertical delineation" of MTBE contamination "at almost every site" was a significant impairment to his ability to formulate opinions concerning threats to deeper aquifers. (O'Reilly Decl., Ex. 3, Brown Depo. (Jan. 25 12) at 924:1219.) BEACON BAY FV 6. Brown could not testify that it was more likely than not that further on-site or 6. Disputed. With respect to the Beacon 10 6. OCWD’s dispute is illusory and immaterial. Plaintiff fails to controvert the DEFENDANTS’ STATEMENT OF FACTS offsite remediation was needed at Beacon Bay FV, or that releases from that station posed a threat to water supply wells or water supply aquifers. Condron Decl, Exh. 2 (Brown Exh. 36). PLAINTIFF’S RESPONSE Bay, FV station, Brown testified that • Sufficient MTBE has been released to impact groundwater off-site. • MTBE contamination has migrated off-site • MTBE contamination has commingled offsite with Thrifty #383 and Arco #1912 • Remediation failed to prevent MTBE contamination from migrating off-site • Remediation failed to clean up MTBE contamination that migrated off-site • Additional off-site assessment is required, including assessment of deeper groundwater • It is "possible" that remediation of off-site MTBE contamination will be required, and that this contamination poses a threat to deeper aquifers and wells. (Condron Decl, Exh. 2 (Brown Exh. 36).) Defense witnesses, including expert Anthony Daus, agree that MTBE contamination at the Beacon Bay, FV site has migrated off-site and commingled with other stations in Plume 3. (O'Reilly Decl., Ex. 7, Luka Depo. 11 DEFENDANTS’ REPLY undisputed evidence Defendants cite. Expert testimony that merely states that an injury or damages are “possible” is insufficient to carry plaintiff’s burden. Cal. Civ. Code § 3283. Accord Vestar Dev. II, LLC v. General Dynamics Corp., 249 F.3d 958, 961 (9th Cir. 2001) (“[i]t has long been settled in California that ‘the proof must establish with reasonable certainty and probability that damages will result in the future to the person wronged’”), quoting Caminetti v. Manierre, 23 Cal.2d 94, 101, 142 P.2d 741, 745 (1943); Frustuck v. City of Fairfax, 212 Cal. App. 2d 345, 367-68 (1st Dist. 1963) (“damages which are … merely possible cannot serve as a legal basis for recovery”). DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE DEFENDANTS’ REPLY (March 27,2009) at 281:23282:10; Ex. 8, Daus Depo. (Feb. 2, 2012) at 395:14396:2,397:10-17.) Mr. Daus admitted that he does not know how much MTBE migrated off-site from Beacon Bay, FV or how far it has gone. (Daus Depo. (Feb. 2, 2012) at 395:14-396:2, 397:10-17.) 7. OCWD’s dispute is illusory and immaterial. Plaintiff fails to controvert the Q. Do you have an opinion undisputed testimony Mr. Brown explained during that the alleged MTBE or Defendants cite. Expert his deposition that a "possible" testimony that merely states TBA from Beacon Bay, Fountain Valley is a threat means that he was unable to that an injury or damages are reach a conclusion and that a to any specific drinking “possible” is insufficient to "possible" does not mean the water wells in Orange carry plaintiff’s burden. Cal. station does not pose a threat County? Civ. Code § 3283. Accord to deeper aquifers or wells. Vestar Dev. II, LLC v. General *** (O'Reilly Decl., Ex. 3, Brown Dynamics Corp., 249 F.3d Depo (Jan. 2, 2012) at 441:8958, 961 (9th Cir. 2001) (“[i]t A. I've only been able to 442:1; Brown Depo (Jan. has long been settled in conclude that the release at 3,2012) 638:25-639:11 California that ‘the proof must Beacon Bay Auto Wash, [emphasis added].) establish with reasonable Fountain Valley is a certainty and probability that possible threat to water MTBE was detected in damages will result in the supply wells, but I've been groundwater at Beacon Bay, future to the person able to -unable to conclude FV at 4,770 ppb when it was wronged’”), quoting Caminetti that it's more likely than first sampled for in April v. Manierre, 23 Cal.2d 94, not that the release poses a 1996. (Wheatcraft Decl. ¶ 12.) 101, 142 P.2d 741, 745 threat to a water supply. MTBE was subsequently (1943); Frustuck v. City of detected in groundwater as Fairfax, 212 Cal. App. 2d 345, Condron Decl. Exh. 3 (Brown high as 100,000 ppb. (Id.) 367-68 (1st Dist. 1963) Dep. at 1333:7-16). Groundwater off-site has not (“damages which are … been sampled for merely possible cannot serve contamination. (Id.) Where no as a legal basis for recovery”). off-site sampling has occurred, transport modeling is the best Neither Wheatcraft’s model method of determining the nor his testimony identifies likely fate of MTBE found in any need for remediation at 7. Brown testified at his deposition: 7. Undisputed as to text of Mr. Brown's testimony, otherwise Disputed. 12 DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE groundwater on-site. (Id.) Dr. Wheatcraft modeled the MTBE released from Beacon Bay, FV. (Wheatcraft Decl. ¶ 4.) The modeling showed that the MTBE released from Beacon Bay, FV has migrated off-site and mixed with MTBE from other stations, and contributed to focus plumes. (Id. ¶ 5.) The modeling showed the MTBE contributed by Beacon Bay, FV will converge with MTBE released by other stations to impact deeper aquifers and drinking water wells. (Id. ¶¶ 6-7.) The District's Chief Hydrogeologist, Roy Herndon, also concluded that this station posed a threat to drinking water resources and wells because the station is located within the "pumping depression" of a major supply well or wells. (Herndon Decl. ¶ 3.) 13 DEFENDANTS’ REPLY these stations, and he testified that he was unable to make any connection between a release of MTBE gasoline from any of the stations at issue on this motion and any drinking water well or the deeper aquifer. (Jan. 16, 2012 Deposition of Stephen Wheatcraft), p. 115:23-24 (“I didn’t breakdown any of the analysis that I did by station”); Id., p. 116:22-117:20 (“Q. And did you, for purposes of the work that you performed in this case, at any time where there are several service stations potentially impacting grids, model the individual stations to determine what impact they may have in the future on potable water supplies? [Objection] THE WITNESS: We haven’t done any models in which we isolated a particular source and ran only that source, no. BY MR. STACK: Q. Did you, in the course of your work, do any analysis in which you allocated responsibility from several service stations impacting grid cells in your model to assign a percentage of the responsibility for contamination being detected at some future date in a potable water supply well? [Objection] THE WITNESS: No, we -- we did not analyze or isolate any particular station in the course of our analysis in modeling.”); Id., p. 122:1-4 DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE DEFENDANTS’ REPLY (“[W]e didn’t analyze, again, which – whether it was coming from this particular site or that site in terms of an origin. That wasn’t a question we were looking at.”); Roy Dec., Ex. 73 (Jan. 17, 2012 Wheatcraft Depo.), pp. 368:19-369:9 (“THE WITNESS: I haven’t done any analysis. As we, again, talked about yesterday, that identifies MTBE from a specific station and whether it mingles or commingles with other plumes and whether or not MTBE from a particular station reaches a particular well.”); Id., p. 370:2-5 (“I haven’t done any analysis to identify which station or stations is responsible or are responsible for MTBE concentrations in specific production wells.”); Id., p. 370:9-18 (“Is it true that you do not have an opinion whether or not gasoline containing MTBE from that site has in the past reached any drinking water well in Orange County Water District? [Objection] THE WITNESS: I haven't formulated any opinion.”); Id., pp. 371:20372:5 (“I haven’t performed any analysis to look at any individual station as to whether -- what the pathway is from that station to any ultimate well.”); Id., p. 372:720 (“I don’t have a specific opinion as to which station contributes MTBE to which 14 DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE DEFENDANTS’ REPLY production well. So I’m – I’m – that’s stated a little differently than what you said, but that’s my answer to your question.”); Id., p. 405:11405:21 (“I haven’t done any analysis to isolate whether MTBE -- the MTBE from a specific station has reached any specific production well.”) Bolin’s and Herndon’s declarations fail to provide any information specific to these stations as to the need for further remediation or the existence of any threat to a water supply well or aquifer from the stations at issue on this motion. 8. Brown testified that "[w]ith respect to water supply wells, I could only conclude that the release [at Beacon Bay FV] poses a possible threat. I could not conclude that it was more likely than not." 8. Undisputed as to text of testimony, otherwise Disputed for the same reasons as set forth in Response to Paragraphs 6 and 7 supra. 8. See Defendants’ Reply to Paragraphs 6 and 7 supra. 9. Undisputed as to testimony, otherwise Disputed for the same reasons set forth in Response to Paragraphs 3-5 and 6-7 supra. 9. See Defendants’ Reply to Paragraphs 3, 5, 6 and 7 supra. Neither Bolin nor Wheatcraft provides any evidence that Beacon Bay FV is responsible for any past, present or future MTBE detections in any wells. Condron Decl, Exh. 3 (Brown Dep, at 1375:17-20) 9. Brown was unable to conclude that any additional off-site remediation was necessary at Beacon Bay FV, or that the site posed a threat to deeper drinking water aquifers: Q. Okay. Question 20, you think it's possible that offsite remediation will be needed at this site, but you Beacon Bay, FV is part of Plume No.3 which is associated with District monitoring wells OCWD-Ml0, OCWD-M11, and OCWDM45. (Bolin Decl. 15 DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE don't know whether it's more likely than not. Is that right -- fair? ¶ 3.) MTBE has been detected in OCWD-M45. (Id.) Dr. Wheatcraft's model also predicts that all of these wells will be impacted by MTBE. (Wheatcraft Decl. ¶ 8.) A. That is correct. Q. And looking at your chart again, you think it's possible that contamination from this site poses a threat to deeper aquifers, but you don't have an opinion as to whether it's more likely than not? DEFENDANTS’ REPLY A. That is correct. Condron Decl. Exh. 3 (Brown Dep. at 1364:13-1365: 17). 10. Brown concluded that no further on-site remediation was needed at Beacon Bay FV, Condron Decl. Exh. 2 (Brown Exh. 36, Opinion 19): Q. And Question 19, it's your opinion that it's more likely than not that no additional on-site delineation is needed -excuse me –no additional on-site remediation of groundwater is needed, correct? A. That is correct. Q. It's your opinion that onsite remediation has effectively controlled the contamination, correct? 10. OCWD’s dispute is illusory and immaterial. Plaintiff fails to controvert the undisputed testimony The fact that no further on-site Defendants cite. Expert remediation is needed does not testimony that merely states establish that the District has that an injury or damages are not been harmed by off-site “possible” is insufficient to MTBE from Beacon Bay, FV carry plaintiff’s burden. Cal. as set forth in Response to Civ. Code § 3283. Accord Paragraphs 6, 7, and 9 supra. Vestar Dev. II, LLC v. General Dynamics Corp., 249 F.3d Mr. Brown testified that on958, 961 (9th Cir. 2001) (“[i]t site remediation at Beacon has long been settled in Bay, FV, failed to prevent California that ‘the proof must MTBE contamination from establish with reasonable migrating off-site, and failed certainty and probability that to clean up MTBE damages will result in the contamination that migrated future to the person off-site. Thus, Mr. Brown wronged’”), quoting Caminetti concluded that additional off- v. Manierre, 23 Cal.2d 94, site assessment is required, 101, 142 P.2d 741, 745 including assessment of (1943); Frustuck v. City of 10. Undisputed as to testimony, otherwise Disputed. 16 DEFENDANTS’ STATEMENT OF FACTS *** PLAINTIFF’S RESPONSE DEFENDANTS’ REPLY deeper groundwater. Fairfax, 212 Cal. App. 2d 345, 367-68 (1st Dist. 1963) A. Correct. Question 14 would (Condron Decl, Exh. 2 (Brown (“damages which are … indicate that the Exh. 36).) merely possible cannot serve remediation performed has as a legal basis for recovery”). effectively addressed the on-site groundwater The Orange County Health contamination. Care Agency issued a Remedial Action Completion Condron Decl. Exh. 3 (Brown Certification to Beacon Bay Dep. at 1359:21-1360:8) on April 19, 2006, stating that “no further action related to the petroleum release(s) at the site is required.” Condron Reply Decl. Exh. 4. UNOCAL #5399 11. Brown testified at his deposition that it was more likely than not that Unocal #5399 did not pose a threat to water supply wells: 11. Undisputed as to testimony, otherwise Disputed Brown testified that • Sufficient MTBE has been released to impact groundwater off-site. Q. And you do not think that the alleged MTBE released from Unocal 5399 • MTBE contamination has is a threat to any specific migrated off-site drinking water wells in Orange County, correct? • MTBE contamination has possibly commingled with A. If you refer to Exhibit 35 Texaco #121681 for Unocal station 5399, question 22. • Remediation failed to prevent MTBE contamination Q. I think you meant 36. from migrating off-site A. Sorry, yes. Excuse me, 36. • Remediation failed to clean Question 22 states, up MTBE contamination that "Releases at the facility migrated off-site pose a threat to water supply wells?" I have • Additional off-site concluded that it is more assessment is required, 17 11. OCWD’s dispute is illusory and immaterial. Plaintiff fails to controvert the undisputed testimony Defendants cite. Expert testimony that merely states that an injury or damages are “possible” is insufficient to carry plaintiff’s burden. Cal. Civ. Code § 3283. Accord Vestar Dev. II, LLC v. General Dynamics Corp., 249 F.3d 958, 961 (9th Cir. 2001) (“[i]t has long been settled in California that ‘the proof must establish with reasonable certainty and probability that damages will result in the future to the person wronged’”), quoting Caminetti v. Manierre, 23 Cal.2d 94, 101, 142 P.2d 741, 745 (1943); Frustuck v. City of Fairfax, 212 Cal. App. 2d 345, 367-68 (1st Dist. 1963) DEFENDANTS’ STATEMENT OF FACTS likely than not that they do not pose such a threat. Condron Decl. Exh. 3 (Brown Dep. at 915:7-22). PLAINTIFF’S RESPONSE including assessment of deeper groundwater • It is "possible" that remediation of off-site MTBE contamination will be required. DEFENDANTS’ REPLY (“damages which are speculative … or merely possible cannot serve as a legal basis for recovery”). Neither Wheatcraft’s model nor his testimony identifies any need for remediation at Condron Decl, Exh. 2 (Brown these stations, and he testified Exh. 36). that he was unable to make any connection between a Mr. Brown explained during release of MTBE gasoline his deposition that a "possible" from any of the stations at means that he was unable to issue on this motion and any reach a conclusion and that a drinking water well or the "possible" does not mean the deeper aquifer. (Jan. 16, 2012 station does not pose a threat Deposition of Stephen to deeper aquifers. (O'Reilly Wheatcraft), p. 115:23-24 (“I Decl., Ex. 3, Brown Depo didn’t breakdown any of the (Jan. 2,2012) at 441:8-442: 1; analysis that I did by station”); Brown Depo (Jan. 3,2012) Id., p. 116:22-117:20 (“Q. 638:25-639:11 [emphasis And did you, for purposes of added].) the work that you performed in this case, at any time where Mr. Brown's ability to form there are several service conclusions about off-site stations potentially impacting contamination at Unocal grids, model the individual #5399 was impaired because stations to determine what MTBE had not been sampled impact they may have in the for at the site since 1997. future on potable water (O'Reilly Decl., Ex. 3, Brown supplies? [Objection] THE Depo. (Jan. 25,2012) at WITNESS: We haven’t done 919:23-920: 13.) any models in which we isolated a particular source MTBE was detected in and ran only that source, no. groundwater at 310 ppb when BY MR. STACK: Q. Did you, it was first sampled for in in the course of your work, do March 1996. (Wheatcraft any analysis in which you Decl. ¶ 13.) MTBE was allocated responsibility from subsequently detected in several service stations groundwater as high as 2,000 impacting grid cells in your ppb. (Id.) Groundwater offmodel to assign a percentage site has not been sampled for of the responsibility for contamination. (Id.) Where no contamination being detected 18 DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE DEFENDANTS’ REPLY off-site sampling has occurred, transport modeling is the best method of determining the likely fate of MTBE found in groundwater on-site. (Id.) at some future date in a potable water supply well? [Objection] THE WITNESS: No, we -- we did not analyze or isolate any particular station in the course of our analysis in modeling.”); Id., p. 122:1-4 (“[W]e didn’t analyze, again, which – whether it was coming from this particular site or that site in terms of an origin. That wasn’t a question we were looking at.”); Roy Dec., Ex. 73 (Jan. 17, 2012 Wheatcraft Depo.), pp. 368:19-369:9 (“THE WITNESS: I haven’t done any analysis. As we, again, talked about yesterday, that identifies MTBE from a specific station and whether it mingles or commingles with other plumes and whether or not MTBE from a particular station reaches a particular well.”); Id., p. 370:2-5 (“I haven’t done any analysis to identify which station or stations is responsible or are responsible for MTBE concentrations in specific production wells.”); Id., p. 370:9-18 (“Is it true that you do not have an opinion whether or not gasoline containing MTBE from that site has in the past reached any drinking water well in Orange County Water District? [Objection] THE WITNESS: I haven't formulated any opinion.”); Id., pp. 371:20372:5 (“I haven’t performed any analysis to look at any Dr. Wheatcraft modeled the MTBE released from the Unocal #5399 station. (Wheatcraft Decl. ¶ 4.) The modeling showed that the MTBE released from Unocal #5399 has migrated off-site and mixed with MTBE from other stations, and contributed to focus plumes. (ld. ¶ 5.) More importantly, Wheatcraft's modeling showed the MTBE contributed by Unocal #5399 will converge with MTBE released by other stations to impact deeper aquifers and drinking water wells. (Id. ¶¶ 6-7.) The District's Chief Hydrogeologist, Roy Herndon, also concluded that this station posed a threat to drinking water resources and wells because the station is located within the "pumping depression" of a major supply well or wells. (Herndon Decl. ¶ 3.) Unocal #5399 is part of Plume No.1, and City of Newport Beach drinking water well MB-TAMD is associated with this plume. (Bolin Decl., ¶ 2.) MTBE was detected twice, in 2005 and 2008, in NB-TAMD. (Bolin Decl., ¶ 2.) 19 DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE DEFENDANTS’ REPLY Additionally, NB-TAMS, HB9, NB-DOLD and NB-DOLS drinking water wells are associated with Plume No.1. (Bolin Decl., ¶ 2.) Dr. Wheatcraft's model also predicts that all of these wells will be impacted by MTBE. (Wheatcraft Decl. ¶ 8.) individual station as to whether -- what the pathway is from that station to any ultimate well.”); Id., p. 372:720 (“I don’t have a specific opinion as to which station contributes MTBE to which production well. So I’m – I’m – that’s stated a little differently than what you said, but that’s my answer to your question.”); Id., p. 405:11405:21 (“I haven’t done any analysis to isolate whether MTBE -- the MTBE from a specific station has reached any specific production well.”) Bolin’s and Herndon’s declarations fail to provide any information specific to these stations as to the need for further remediation or the existence of any threat to a water supply well or aquifer from the stations at issue on this motion. 12. Brown could not testify that it was more likely than not that an alleged release of MTBE from Unocal #5399 posed any threat to deep aquifers. 12. Disputed for the reasons set forth in Response to Paragraph 11 supra. Condron Decl. Exh. 3 (Brown Dep. at 924:1-5 (Q. "Again, you think it's possible that contamination from Unocal 5399 is a threat to deep aquifers, but you can't say whether or not it's more likely than not that's the case, 20 12. OCWD’s dispute is illusory and immaterial. Plaintiff fails to controvert the undisputed testimony Defendants cite. Expert testimony that merely states that an injury or damages are “possible” is insufficient to carry plaintiff’s burden. Cal. Civ. Code § 3283. Accord Vestar Dev. II, LLC v. General Dynamics Corp., 249 F.3d 958, 961 (9th Cir. 2001) (“[i]t has long been settled in California that ‘the proof must establish with reasonable DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE correct? A. That's correct.")). DEFENDANTS’ REPLY certainty and probability that damages will result in the future to the person wronged’”), quoting Caminetti v. Manierre, 23 Cal.2d 94, 101, 142 P.2d 741, 745 (1943); Frustuck v. City of Fairfax, 212 Cal. App. 2d 345, 367-68 (1st Dist. 1963) (“damages which are … merely possible cannot serve as a legal basis for recovery”). See Reply to Paragraph 11. 13. Brown could not opine that off-site remediation is necessary, and he stated that remedial activities at Unocal #5399 had addressed alleged on-site impacts: Q. Now, you do think that the current remediation has effectively addressed the on-site MTBE contamination, correct? And that's question 14. A. Yes. And, as indicated, the only remediation activities was [sic] an excavation performed at this facility back in late 1994. 12 [sic]. Disputed for the reasons set forth in Response to Paragraphs 3-5, and 11 supra and as follows: Mr. Brown testified that onsite remedial activities had not addressed or contained MTBE contamination which had migrated offsite. Condron Decl. Exh. 2, Brown Exh. 36. Mr. Brown testified that it is "possible" that off-site remediation is necessary as additional off-site assessment is required, including assessment of deeper groundwater. (Id.) Q. It's your opinion that no more on-site remediation is needed at this site, correct? A. That's correct. Q. And in terms of question 20, the off-site 21 13. OCWD’s dispute is illusory and immaterial. Plaintiff fails to controvert the undisputed testimony Defendants cite. Expert testimony that merely states that an injury or damages are “possible” is insufficient to carry plaintiff’s burden. Cal. Civ. Code § 3283. Accord Vestar Dev. II, LLC v. General Dynamics Corp., 249 F.3d 958, 961 (9th Cir. 2001) (“[i]t has long been settled in California that ‘the proof must establish with reasonable certainty and probability that damages will result in the future to the person wronged’”), quoting Caminetti v. Manierre, 23 Cal.2d 94, 101, 142 P.2d 741, 745 (1943); Frustuck v. City of Fairfax, 212 Cal. App. 2d 345, 367-68 (1st Dist. 1963) (“damages which are … merely possible cannot serve as a legal basis for recovery”). DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE DEFENDANTS’ REPLY remediation, again, it may need it, but you can't say whether it's more likely than not it's needed, correct? A. That's correct. Condron Decl. Exh. 3 (Brown Dep. at 920:19-921:7). UNOCAL #5123 • Additional off-site assessment is required, including assessment of deeper groundwater 14. OCWD’s dispute is illusory and immaterial. Plaintiff fails to controvert the undisputed testimony Defendants cite. Expert testimony that merely states that an injury or damages are “possible” is insufficient to carry plaintiff’s burden. Cal. Civ. Code § 3283. Accord Vestar Dev. II, LLC v. General Dynamics Corp., 249 F.3d 958, 961 (9th Cir. 2001) (“[i]t has long been settled in California that ‘the proof must establish with reasonable certainty and probability that damages will result in the future to the person wronged’”), quoting Caminetti v. Manierre, 23 Cal.2d 94, 101, 142 P.2d 741, 745 (1943); Frustuck v. City of Fairfax, 212 Cal. App. 2d 345, 367-68 (1st Dist. 1963) (“damages which are … merely possible cannot serve as a legal basis for recovery”). • It is "possible" that Neither Wheatcraft’s model 14. Brown was unable to opine that Unocal #5123 posed any threat to drinking water wells: 14. Undisputed as to testimony, otherwise disputed. Q. Mr. Brown, you do not have an opinion that the alleged MTBE from Unocal 5123 is a threat to any specific drinking water wells in Orange County, do you? • Sufficient MTBE has been released to impact groundwater off-site. A. I have only been able to conclude that it poses a possible threat. I have not been able to conclude that that threat is more likely than not. Condron Decl. Exh. 3 (Brown Dep, at 1021:15-23). Brown testified that • MTBE contamination has migrated off-site • MTBE contamination has possibly commingled off-site with Huntington Beach Arco • Remediation failed to prevent MTBE contamination from migrating off-site • Remediation possibly failed to clean up MTBE contamination that migrated off-site 22 DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE DEFENDANTS’ REPLY nor his testimony identifies any need for remediation at these stations, and he testified that he was unable to make any connection between a release of MTBE gasoline Condron Decl, Exh. 2 (Brown from any of the stations at Exh. 36). issue on this motion and any drinking water well or the Mr. Brown explained during deeper aquifer. (Jan. 16, 2012 his deposition that a "possible" Deposition of Stephen means that he was unable to Wheatcraft), p. 115:23-24 (“I reach a conclusion and that a didn’t breakdown any of the "possible" does not mean the analysis that I did by station”); station does not pose a threat Id., p. 116:22-117:20 (“Q. to deeper aquifers or wells. And did you, for purposes of (O'Reilly Decl., Ex. 3 Brown the work that you performed Depo (Jan. 2 2012) at 441:8in this case, at any time where 442:1; Brown Depo (Jan. 3, there are several service 2012) 638:25-639:11 stations potentially impacting [emphasis added].) grids, model the individual stations to determine what MTBE was detected in impact they may have in the groundwater at 32,000 ppb future on potable water when it was first sampled for supplies? [Objection] THE in February 1996. (Wheatcraft WITNESS: We haven’t done Decl. ¶ 14.) This was the any models in which we highest detection of MTBE at isolated a particular source this site. (Id.) The MTBE and ran only that source, no. sampling data for this site BY MR. STACK: Q. Did you, does not indicate what in the course of your work, do happened to the MTBE when any analysis in which you it migrated off-site. (Id.) allocated responsibility from Transport modeling is the best several service stations method of determining the impacting grid cells in your likely fate of MTBE found in model to assign a percentage groundwater on-site. (Id.) of the responsibility for contamination being detected Dr. Wheatcraft modeled the at some future date in a MTBE released from Unocal potable water supply well? #5123. (Wheatcraft Decl. at [Objection] THE WITNESS: ¶ 4.) Dr. Wheatcraft's No, we -- we did not analyze modeling showed that the or isolate any particular station MTBE released from Unocal remediation of off-site MTBE contamination will be required, and that this contamination poses a threat to deeper aquifers and wells. 23 DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE DEFENDANTS’ REPLY in the course of our analysis in modeling.”); Id., p. 122:1-4 (“[W]e didn’t analyze, again, which – whether it was coming from this particular site or that site in terms of an origin. That wasn’t a question we were looking at.”); Roy Dec., Ex. 73 (Jan. 17, 2012 Wheatcraft Depo.), pp. 368:19-369:9 (“THE WITNESS: I haven’t done any analysis. As we, again, talked The District's Chief about yesterday, that identifies Hydrogeologist, Roy Herndon, MTBE from a specific station also concluded that this station and whether it mingles or posed a threat to drinking commingles with other plumes water resources and wells and whether or not MTBE because the station is located from a particular station within the "pumping reaches a particular well.”); depression" of a major supply Id., p. 370:2-5 (“I haven’t well or wells. (Herndon Decl. done any analysis to identify ¶ 3.) which station or stations is responsible or are responsible Unocal #5123 is part of Plume for MTBE concentrations in No.9, and City of Huntington specific production wells.”); Beach drinking water wells Id., p. 370:9-18 (“Is it true that HB-1, HB-13, HB-4, and HB- you do not have an opinion 7 are associated with this whether or not gasoline plume. (Bolin Decl. ¶ 4.) Dr. containing MTBE from that Wheatcraft's model predicts site has in the past reached any that all of these wells will be drinking water well in Orange impacted by MTBE. County Water District? (Wheatcraft Decl. ¶ 8.) [Objection] THE WITNESS: I haven't formulated any opinion.”); Id., pp. 371:20372:5 (“I haven’t performed any analysis to look at any individual station as to whether -- what the pathway is from that station to any ultimate well.”); Id., p. 372:720 (“I don’t have a specific #5123 has migrated off-site and mixed with MTBE from other stations, and contributed to focus plumes. (Wheatcraft Decl. ¶ 5.) Wheatcraft's modeling showed the MTBE contributed by Unocal #5123 will converge with MTBE released by other stations to impact deeper aquifers and drinking water wells. (Wheatcraft Decl. ¶¶ 6-7.) 24 DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE DEFENDANTS’ REPLY opinion as to which station contributes MTBE to which production well. So I’m – I’m – that’s stated a little differently than what you said, but that’s my answer to your question.”); Id., p. 405:11405:21 (“I haven’t done any analysis to isolate whether MTBE -- the MTBE from a specific station has reached any specific production well.”) Bolin’s and Herndon’s declarations fail to provide any information specific to these stations as to the need for further remediation or the existence of any threat to a water supply well or aquifer from the stations at issue on this motion. 15. Brown cannot state with any reasonable degree of certainty that an alleged release from Unocal #5123 poses a threat to the water supply in Orange Countyeither to the deep aquifers or to water supply wells: 15. Undisputed as to testimony, otherwise Disputed as set forth in Response to Paragraph 14. Once again, I cannot conclude that the releases more than likely than not pose a threat to deeper aquifers, only that they possibly pose such a threat. *** Yes, I'm of the same opinion, that I could not conclude that it's more likely than not that the releases pose a threat to 25 15. OCWD’s dispute is illusory and immaterial. See Defendants’ Reply to Paragraph 14. DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE DEFENDANTS’ REPLY water supply wells, only that they pose a possible threat. Condron Decl. Exh. 3 (Brown Dep: at 1036:22-25; 1037:811). 16. Brown could not determine whether additional on-site remediation was needed at Unocal #5123: 16. Undisputed as to testimony, otherwise Disputed. 16. OCWD’s dispute is illusory and immaterial. Plaintiff fails to controvert the undisputed testimony The fact that no further on-site Defendants cite. Expert Q. And you think it is possible remediation is needed does not testimony that merely states establish that the District has that additional on-site that an injury or damages are not been harmed by off-site remediation of “possible” is insufficient to groundwater is required at MTBE from Beacon Bay, FV carry plaintiff’s burden. Cal. as set forth in Response to this site, but you do not Civ. Code § 3283. Accord Paragraph 14 supra. have an opinion that it's Vestar Dev. II, LLC v. General more likely than not that Dynamics Corp., 249 F.3d Mr. Brown testified that onadditional on-site 958, 961 (9th Cir. 2001) (“[i]t site remediation at failed to remediation will be has long been settled in prevent MTBE contamination California that ‘the proof must required at this site, from migrating off-site. correct? establish with reasonable certainty and probability that A. Based upon the information (Condron Decl, Exh. 2 (Brown damages will result in the Exh. 36).) I have reviewed to date, I future to the person cannot conclude that it's wronged’”), quoting Caminetti more likely than not that v. Manierre, 23 Cal.2d 94, additional on-site 101, 142 P.2d 741, 745 remediation of (1943); Frustuck v. City of groundwater will be Fairfax, 212 Cal. App. 2d 345, required. 367-68 (1st Dist. 1963) (“damages which are … Condron Decl. Exh. 3 (Brown merely possible cannot serve Dep. at 1034:2-13) (noting as a legal basis for recovery”). further that the need additional on-site remediation was only "possible"). 17. Brown could not conclude whether off-site remediation is necessary at Unocal #5123: " ...I cannot conclude that its [sic] more likely than not that 17. Undisputed as to testimony, otherwise Disputed as set forth in Response to Paragraphs 3-5, and 14 supra. 26 17. OCWD’s dispute is illusory and immaterial. Plaintiff fails to controvert the undisputed testimony Defendants cite. Expert DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE additional off-site remediation of groundwater will be required, only that it is possible .... " Condron Decl. Exh. 3 (Brown Dep. at 1036:3-14; Brown Dep. at 1037:13-18 ("Q. And you have not concluded that it is more likely than not that additional remediation is necessary at this site? A. That is correct. Only that additional remediation may possibly be required.")). DEFENDANTS’ REPLY Mr. Brown testified that onsite remediation at failed to prevent MTBE contamination from migrating off-site. Thus, Mr. Brown concluded that additional off-site assessment is required, including assessment of deeper groundwater. Mr. Brown testified that it is "possible" that off-site remediation is necessary as additional off-site assessment is required. testimony that merely states that an injury or damages are “possible” is insufficient to carry plaintiff’s burden. Cal. Civ. Code § 3283. Accord Vestar Dev. II, LLC v. General Dynamics Corp., 249 F.3d 958, 961 (9th Cir. 2001) (“[i]t has long been settled in California that ‘the proof must establish with reasonable certainty and probability that damages will result in the future to the person (Condron Decl, Exh. 2 (Brown wronged’”), quoting Caminetti Exh. 36).) v. Manierre, 23 Cal.2d 94, 101, 142 P.2d 741, 745 (1943); Frustuck v. City of Fairfax, 212 Cal. App. 2d 345, 367-68 (1st Dist. 1963) (“damages which are … merely possible cannot serve as a legal basis for recovery”). THRIFTY 368 18. For Thrifty 368, Brown entered an "N" (not more likely than not) on both additional on-site remediation required, Condron Decl. Exh. 2 (Brown Exh. 36, Q 19), and additional off-site remediation required, Condron Decl. Exh. 2 (Brown Exh. 36, Q20); and a "P" (possible but does not meet the threshold of more likely than not) on both posing a threat to deeper aquifers, Condron Decl. Exh. 2 (Brown Exh. 36, Q21), and posing a threat to water supply wells. 18. Undisputed as to entries on Exhibit 36, otherwise disputed. Brown testified that • Sufficient MTBE has been released to impact groundwater off-site. • MTBE contamination has migrated off-site • MTBE contamination has commingled offsite with Unocal #5226 27 18. OCWD’s dispute is illusory and immaterial. Plaintiff fails to controvert the undisputed testimony Defendants cite. Expert testimony that merely states that an injury or damages are “possible” is insufficient to carry plaintiff’s burden. Cal. Civ. Code § 3283. Accord Vestar Dev. II, LLC v. General Dynamics Corp., 249 F.3d 958, 961 (9th Cir. 2001) (“[i]t has long been settled in California that ‘the proof must establish with reasonable certainty and probability that DEFENDANTS’ STATEMENT OF FACTS Condron Decl. Exh. 2 (Brown Exh. 36, Q22). PLAINTIFF’S RESPONSE DEFENDANTS’ REPLY • Remediation possibly failed to prevent MTBE contamination from migrating off-site damages will result in the future to the person wronged’”), quoting Caminetti v. Manierre, 23 Cal.2d 94, 101, 142 P.2d 741, 745 (1943); Frustuck v. City of Fairfax, 212 Cal. App. 2d 345, 367-68 (1st Dist. 1963) (“damages which are … merely possible cannot serve as a legal basis for recovery”). • Additional off-site assessment of deeper groundwater is required • It is "possible" that remediation of off-site MTBE contamination will be required, and that this contamination poses a threat to deeper aquifers and wells. Condron Decl, Exh. 2 (Brown Exh. 36). Mr. Brown explicitly testified that he could not formulate an opinion as to possible threats to wells at Thrifty #368 because of inadequate investigations done by defendants: While releases of MTBE and TBA have occurred, the lateral extent of the contaminants both historically and currently is delineated, in my opinion; however, there has been no investigation of the potential vertical migration of contaminants. Therefore, given the absence of that information, it is possible that the release at this facility may have migrated vertically and could, thus, pose a possible 28 Neither Wheatcraft’s model nor his testimony identifies any need for remediation at these stations, and he testified that he was unable to make any connection between a release of MTBE gasoline from any of the stations at issue on this motion and any drinking water well or the deeper aquifer. (Jan. 16, 2012 Deposition of Stephen Wheatcraft), p. 115:23-24 (“I didn’t breakdown any of the analysis that I did by station”); Id., p. 116:22-117:20 (“Q. And did you, for purposes of the work that you performed in this case, at any time where there are several service stations potentially impacting grids, model the individual stations to determine what impact they may have in the future on potable water supplies? [Objection] THE WITNESS: We haven’t done any models in which we isolated a particular source and ran only that source, no. BY MR. STACK: Q. Did you, in the course of your work, do DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE DEFENDANTS’ REPLY any analysis in which you allocated responsibility from several service stations impacting grid cells in your model to assign a percentage of the responsibility for contamination being detected at some future date in a potable water supply well? (O'Reilly Decl. ,Ex. 3 Brown [Objection] THE WITNESS: Depo. (Jan. 2, 2012) at 451:3- No, we -- we did not analyze 452:22 [emphasis added].) or isolate any particular station in the course of our analysis in Mr. Brown explained during modeling.”); Id., p. 122:1-4 his deposition that a "possible" (“[W]e didn’t analyze, again, means that he was unable to which – whether it was reach a conclusion and that a coming from this particular "possible" does not mean the site or that site in terms of an station does not pose a threat origin. That wasn’t a question to deeper aquifers or wells. we were looking at.”); Roy (O'Reilly Decl., Ex. 3, Brown Dec., Ex. 73 (Jan. 17, 2012 Depo (Jan. 2, 2012) at 441:8Wheatcraft Depo.), pp. 442:1; Brown Depo (Jan. 368:19-369:9 (“THE 3,2012) 638:25-639:11 WITNESS: I haven’t done any [emphasis added].) analysis. As we, again, talked about yesterday, that identifies MTBE was detected in MTBE from a specific station groundwater at Thrifty #368 at and whether it mingles or 410 ppb when it was first commingles with other plumes sampled for in February 1996. and whether or not MTBE (Wheatcraft Decl. ¶ 13.) from a particular station MTBE was subsequently reaches a particular well.”); detected in groundwater as Id., p. 370:2-5 (“I haven’t high as 10,000 ppb. (Id.) done any analysis to identify Groundwater off-site has not which station or stations is been sampled for responsible or are responsible contamination. (Id.) Where no for MTBE concentrations in off-site sampling has occurred, specific production wells.”); transport modeling is the best Id., p. 370:9-18 (“Is it true that method of determining the you do not have an opinion likely fate of MTBE found in whether or not gasoline groundwater on-site. (Id.) containing MTBE from that site has in the past reached any Dr. Wheatcraft modeled the risk to water supply wells in the immediate vicinity. But I have not been able to conclude that it is more likely than not that the releases at this facility pose a threat to these water supply wells. 29 DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE DEFENDANTS’ REPLY drinking water well in Orange County Water District? [Objection] THE WITNESS: I haven't formulated any opinion.”); Id., pp. 371:20372:5 (“I haven’t performed any analysis to look at any individual station as to whether -- what the pathway is from that station to any ultimate well.”); Id., p. 372:720 (“I don’t have a specific opinion as to which station contributes MTBE to which production well. So I’m – I’m – that’s stated a little The District's Chief differently than what you said, Hydrogeologist, Roy Herndon, but that’s my answer to your also concluded that this station question.”); Id., p. 405:11posed a threat to drinking 405:21 (“I haven’t done any water resources and wells analysis to isolate whether because the station is located MTBE -- the MTBE from a within the "pumping specific station has reached depression" of a major supply any specific production well.”) well or wells. (Herndon Decl. Disputed that groundwater ¶ 3.) has not been sampled off-site Thrifty #368 is part of Plume at Thrifty #368. Off-site No.9, and City of Huntington groundwater monitoring has Beach drinking water wells been conducted at Thrifty HB-l, HB-13, HB-4, and HB-7 #368. Condron Reply Decl. are associated with this plume. Exh. 5 (Anthony Brown (Bolin Decl. ¶ 4.) Dr. Deposition, Ex. 50); see also Wheatcraft's model predicts Declaration of Bryan Barnhart that all of these wells will be in support of Plaintiff’s impacted by MTBE. Opposition to Defendants’ (Wheatcraft Decl. ¶ 8.) [Omnibus] Motion for Summary Judgment, ¶ 3, Ex. 6, pp. 15-16 [Expert Report of Anthony Brown, Appx. B.18 Facility Summary Report for Thrifty Oil #368, p.1] (“Groundwater analytical results for samples collected at MTBE released from Thrifty #368. (Wheatcraft Decl. at ¶ 4.) The modeling showed that the MTBE released from Thrifty #368 has migrated offsite and mixed with MTBE from other stations, and contributed to focus plumes. (Id. ¶ 5.) The modeling showed the MTBE contributed by Thrifty #368 will converge with MTBE released by other stations to impact deeper aquifers and drinking water wells. (Id. ¶¶ 6-7.) 30 DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE DEFENDANTS’ REPLY on- and off-site locations are provided in Appendix A…”). Bolin’s and Herndon’s declarations fail to provide any information specific to these stations as to the need for further remediation or the existence of any threat to a water supply well or aquifer from the stations at issue on this motion. 19. Disputed 19. Brown testified at his deposition that he gave a site a "P" even if he felt it "unlikely" As explained above, Mr. Brown testified that: that it posed a threat to drinking water: As I have discussed in response to earlier Q. Let's assume that you questions, if we believe that concluded that it was it was more likely than not unlikely that [a site] was a the contamination posed a threat to drinking water, threat, then in response to you would still give [the question No. 22, the answer site] a "P" correct? would be "Yes." *** If we believe that the contamination did not pose THE WITNESS: It actually a threat, then the answer could get a "P" or an "N." We're talking generically would be "No." across all of the potential sites. If we could not determine that it was more likely than Condron Decl. Exh. 3 (Brown not that the contamination Dep. at 442:12-24). Brown posed a threat, but also not could not conclude that it is more likely than not that determine that it was more likely than not that it did not Thrifty 368 presents a threat to pose a threat, then it was wells in the vicinity of the left as a "Possible." station. Condron Decl. Exh. 3 (Brown Dep. at 473:2-476:3). (O'Reilly Decl., Ex. 3, Brown Depo (Jan. 3, 2012) 638:25639:11 [emphasis added].) In 31 19. OCWD’s dispute is illusory and immaterial. Plaintiff fails to controvert the undisputed testimony Defendants cite. Expert testimony that merely states that an injury or damages are “possible” is insufficient to carry plaintiff’s burden. Cal. Civ. Code § 3283. Accord Vestar Dev. II, LLC v. General Dynamics Corp., 249 F.3d 958, 961 (9th Cir. 2001) (“[i]t has long been settled in California that ‘the proof must establish with reasonable certainty and probability that damages will result in the future to the person wronged’”), quoting Caminetti v. Manierre, 23 Cal.2d 94, 101, 142 P.2d 741, 745 (1943); Frustuck v. City of Fairfax, 212 Cal. App. 2d 345, 367-68 (1st Dist. 1963) (“damages which … merely possible cannot serve as a legal basis for recovery”). DEFENDANTS’ STATEMENT OF FACTS PLAINTIFF’S RESPONSE the page just before the testimony quoted by defendants, Mr. Brown clearly explained that: In evaluating each of the specific service stations, I would obviously look at the historical and current contaminant concentration data, groundwater flow direction, the remediation activities that have occurred at the site. And based upon that and potential data gaps that exist, I would attempt to reach a conclusion that it is more likely than not that the contaminants do pose a threat to water supply wells. And that would be indicated by a "Y" in the column for that particular question... or it's more likely than not they don't. In which case that would be indicated by an "N," that I have reached that conclusion that it's more likely than not that they don't. However, for most of them I could not reach a conclusion either way, and it's simply possible that they do. And, conversely, possible that they don't. (O'Reilly Decl., Ex. 3, Brown Depo (Jan. 2, 2012) at 441:8442:1.) 32 DEFENDANTS’ REPLY ADDITIONAL MATERIAL FACTS ASSERTED BY PLAINTIFF DEFENDANTS’ RESPONSE AND OBJECTIONS 20. Dr. Stephen Wheatcraft was retained to prepare a contaminant transport model based on the geological characteristics of the aquifer in the Orange County basin. (Wheatcraft Decl. ¶¶ 1-3) 20. Admitted. Defendants, however, dispute the reliability and accuracy of Wheatcraft’s work and will challenge it at an appropriate time. 21. Dr. Wheatcraft utilized a separate MTBE source term for each focus plume station that was calculated utilizing actual MTBE groundwater data collected from monitoring wells and other sampling by defendants' consultants at each site. (Wheatcraft Decl. ¶ 4.) The MTBE source term thus represents the MTBE released to groundwater at each focus plume station. (Id.) The transport model prepared by Dr. Wheatcraft thus depicts the transport of MTBE released at each focus plume station through the aquifer to production wells within the District service area, although the model does not isolate each station. (Id.) 21. Disputed. Neither Wheatcraft’s model nor his testimony identifies any need for remediation at these stations, and he testified that he was unable to make any connection between a release of MTBE gasoline from any of the stations at issue on this motion and any drinking water well or the deeper aquifer. (Jan. 16, 2012 Deposition of Stephen Wheatcraft), p. 115:23-24 (“I didn’t breakdown any of the analysis that I did by station”); Id., p. 116:22117:20 (“Q. And did you, for purposes of the work that you performed in this case, at any time where there are several service stations potentially impacting grids, model the individual stations to determine what impact they may have in the future on potable water supplies? [Objection] THE WITNESS: We haven’t done any models in which we isolated a particular source and ran only that source, no. BY MR. STACK: Q. Did you, in the course of your work, do any analysis in which you allocated responsibility from several service stations impacting grid cells in your model to assign a percentage of the responsibility for contamination being detected at some future date in a potable water supply well? [Objection] THE WITNESS: No, we -- we did not analyze or isolate any particular station in the course of our analysis in modeling.”); Id., p. 122:1-4 (“[W]e didn’t analyze, again, which – whether it was coming from this particular site or that site in terms of an origin. That wasn’t a question we were looking at.”); Roy Dec., Ex. 73 (Jan. 17, 2012 Wheatcraft Depo.), pp. 368:19-369:9 (“THE WITNESS: I haven’t done any analysis. As we, again, talked about yesterday, that identifies MTBE from a specific station and whether it mingles or 33 ADDITIONAL MATERIAL FACTS ASSERTED BY PLAINTIFF DEFENDANTS’ RESPONSE AND OBJECTIONS commingles with other plumes and whether or not MTBE from a particular station reaches a particular well.”); Id., p. 370:2-5 (“I haven’t done any analysis to identify which station or stations is responsible or are responsible for MTBE concentrations in specific production wells.”); Id., p. 370:9-18 (“Is it true that you do not have an opinion whether or not gasoline containing MTBE from that site has in the past reached any drinking water well in Orange County Water District? [Objection] THE WITNESS: I haven't formulated any opinion.”); Id., pp. 371:20-372:5 (“I haven’t performed any analysis to look at any individual station as to whether -- what the pathway is from that station to any ultimate well.”); Id., p. 372:7-20 (“I don’t have a specific opinion as to which station contributes MTBE to which production well. So I’m – I’m – that’s stated a little differently than what you said, but that’s my answer to your question.”); Id., p. 405:11-405:21 (“I haven’t done any analysis to isolate whether MTBE -- the MTBE from a specific station has reached any specific production well.”) 22. Dr. Wheatcraft's model shows that as MTBE migrates off-site from a station, that MTBE mixes with MTBE from other nearby stations to form MTBE plumes. (Wheatcraft Decl. ¶ 5; see also O'Reilly Decl., Ex. 4, Wheatcraft Depo. (Jan 17, 2012) at 374: 13375:2.) The model thus shows that MTBE from each focus plume station has contributed to a focus plume. (Id.) 22. Disputed. Neither Wheatcraft’s model nor his testimony identifies any need for remediation at these stations, and he testified that he was unable to make any connection between a release of MTBE gasoline from any of the stations at issue on this motion and any drinking water well or the deeper aquifer. See Response to ¶ 21, supra. 23. Dr. Wheatcraft's model shows that as the MTBE plumes migrate deeper into the aquifer, the contamination will converge in the subsurface. (Wheatcraft Decl. ¶¶ 6-7.) 23. Disputed as to accuracy, and irrelevant to the issues on this motion. Wheatcraft admitted that the model does not tie these stations to any purported future contamination in any well. See Response to ¶ 21, supra. 24. Dr. Wheatcraft's model predicts that 108 district production wells will exceed 5 ppb 24. Disputed as to accuracy, and irrelevant to the issues on this motion. Wheatcraft admitted 34 ADDITIONAL MATERIAL FACTS ASSERTED BY PLAINTIFF DEFENDANTS’ RESPONSE AND OBJECTIONS MTBE after 10 years. (Wheatcraft Decl. ¶ 7.) that the model does not tie these stations to any purported future contamination in any well. See Response to ¶ 21, supra. 25. Dr. Wheatcraft's model predicts that a total of 155 district production wells will be contamination with MTBE above 5 parts per billion in the next 50 years. (Wheatcraft Decl. ¶ 7.) 25. Disputed as to accuracy, and irrelevant to the issues on this motion. Wheatcraft admitted that the model does not tie these stations to any purported future contamination in any well. See Response to ¶ 21, supra. 26. MTBE was not sampled for at any of these stations until 1996. (Wheatcraft Decl. ¶¶ 1215.) MTBE was detected in groundwater the first time it was sampled for at these stations. (Id.) No sampling of groundwater outside the station property was conducted at Beacon Bay, Fountain Valley, Unocal #5399, and Thrifty #368. (Id.) Where there is no off-site data or other data showing what happened to MTBE once it migrated off-site, transport modeling is the best method of determining the likely fate of MTBE released at these stations. (Id.) 26. Irrelevant to the issues on this motion. Wheatcraft admitted that the model does not tie these stations to any purported future contamination in any well. See Response to ¶ 21, supra. 27. Prior to 2003, MTBE had been detected in only eight water production wells. (Bolin Decl. ¶ 5.) By the time the District conducted a second vulnerability assessment in 2010, MTBE was detected for the first time in fiftysix public drinking water wells. (Bolin Decl., ¶ 6.) 27. Irrelevant to the issues on this motion. OCWD provides no evidence that any of these alleged detections can be tied to the stations at issue on this motion. 28. "Each focus plume (with associated stations) is located within a pumping depression [of a major supply well or wells]. Based on the prevalent downward hydraulic gradient beneath each station, MTBE that has 28. Irrelevant. Herndon provides no testimony from which a reasonable jury could conclude that OCWD will incur damages at any of the stations at issue on this motion. In re MTBE, 824 F. Supp. 2d 524, 541 (S.D.N.Y. 2011) Disputed that groundwater has not been sampled off-site at Thrifty #368. Off-site groundwater monitoring has been conducted at Thrifty #368. Condron Reply Decl. Exh. 5 (Anthony Brown Deposition, Ex. 50); see also Declaration of Bryan Barnhart in support of Plaintiff’s Opposition to Defendants’ [Omnibus] Motion for Summary Judgment, ¶ 3, Ex. 6, pp. 15-16 [Expert Report of Anthony Brown, Appx. B.18 Facility Summary Report for Thrifty Oil #368, p.1] (“Groundwater analytical results for samples collected at onand off-site locations are provided in Appendix A…”). 35 ADDITIONAL MATERIAL FACTS ASSERTED BY PLAINTIFF DEFENDANTS’ RESPONSE AND OBJECTIONS migrated off-site from each station will move downward into the principal aquifer and be carried to the pumping wells that created the pumping depressions." (Herndon Decl. (July 21, 2014) ¶ 3.) (“‘the burden must be on the plaintiff to establish some measure of such things as the magnitude and likelihood of the danger and “it cannot be enough to merely suggest a danger and assert that it has not been ruled out’”); Vestar Dev. II, LLC v. General Dynamics Corp., 249 F.3d 958, 961 (9th Cir. 2001) (“[i]t has long been settled in California that ‘the proof must establish with reasonable certainty and probability that damages will result in the future to the person wronged’”). 29. The District, through its extensive study of the basin over decades, estimates that the shallow aquifer holds approximately 5 million acre-feet of groundwater which can supply approximately sixteen years of groundwater pumping from the basin. (Herndon Decl. (July 21, 2014) at ¶¶ 2 & 4.) The shallow aquifer is thus a body of "percolating water" that is replenished from above and discharges to the principal aquifer below. (Id.) The shallow aquifer in the basin is extensive and complex. (Id. at 1-2. & 4) 29. Irrelevant to the issues on this motion. 30. Water budgets prepared by the District as part of their groundwater management plans thus show that up to 98% of the water in the basin, including the water in the shallow aquifer, exits to production wells. (Wheatcraft Decl. ¶ 9.) 30. Irrelevant to the issues on this motion. 31. Defense expert John Connor, admitted the State of California has designated the shallow aquifer in the District's service area for "beneficial use" as a drinking water source. (O'Reilly Decl., Ex. 9, Connor Depo. (Jan. 27, 2012) at 41:9-43:23,45:18-46:11.) 31. Irrelevant to the issues on this motion. 32. Defense expert John Wilson confirmed that MTBE contamination in drinking water wells comes from releases at gasoline stations, and that virtually all drinking water aquifers are vulnerable to contamination released to 32. Irrelevant to the issues on this motion. 36 ADDITIONAL MATERIAL FACTS ASSERTED BY PLAINTIFF DEFENDANTS’ RESPONSE AND OBJECTIONS shallow aquifers. (O'Reilly Decl., Ex. 10, Wilson Depo. (May 18,2012) at 38:1217,198:1-11 Fresno). 33. The shallow aquifer is itself used directly in some areas for drinking water supplies. Both Newport Beach and Huntington Beach, for example, have active drinking water wells that withdraw water from the "shallow" aquifer. (O'Reilly Decl., Ex. 11, Johnson Depo. (Aug. 24, 2010) at 120:15-121:11 [Huntington Beach]; Ex. 12, Murdoch Depo. (May 3, 2010) at 161:7-12 [Newport Beach].) Dr. Wheatcraft's model shows that Newport Beach's shallow well NB-TAMS is or will be impacted by MTBE. (Wheatcraft Decl. ¶ 7.) This well is associated with Plume No. 1 and the Unocal #5399 station. (Bolin Decl. ¶ 2.) 33. Disputed. Wheatcraft admitted that the model does not tie these stations to any purported future contamination in any well. See Response to ¶ 21, supra. 34. "The District has incurred substantial costs to conduct Cone Penetration Testing and groundwater sampling of stations associated with Bellwether Plume Nos. 1,3, and 9, as well as non-station specific costs ... " (Bolin Decl. ¶ 7.) 34. Disputed and irrelevant. The Court has already ruled that OCWD may not rely on these costs because they were incurred after the discovery cut-off (In re MTBE, 279 F.R.D. 131, 138 & nn.61-62 (S.D.N.Y. 2011). Moreover, Bolin never says that those alleged “substantial costs” were incurred at the stations at issue on this motion – because they were not. See Exh. 14 to the Declaration of Justin Massey, submitted in opposition to Defendants’ Omnibus Motion for Summary Judgment (showing that OCWD paid consultant to perform CPT testing at 10 sites (A-J), none of which is at issue on this motion.) 35. Dr. Fogg concluded that "significant MTBE mass [is present] beyond the monitoring well networks ... " of the stations, and that the only way to prevent this MTBE from reaching public drinking water wells is to clean up the [MTBE] contamination before it gets to supply wells." (O'Reilly Decl., Ex. 6, Fogg Depo. (Jan. 21, 2012) at 110:9-24.) 35. Disputed. Fogg provided no opinion as to whether any of the stations at issue on this motion require any additional remediation or whether they pose a threat to any drinking water well or aquifer. Condron Reply Decl. Exh. 2 (Fogg Dep., Jan. 21, 2012, at 59:1760:4 (“Q. Other than looking at site data that was in other expert reports, have you done any analysis of any individual gasoline site in this 37 ADDITIONAL MATERIAL FACTS ASSERTED BY PLAINTIFF DEFENDANTS’ RESPONSE AND OBJECTIONS case? A. No.”); 77:11-12 (“Again, I’m not prepared to talk about specific sites today.”); 78:23-25 (“As I said earlier, I have not investigated specific sites and provided a specific opinion on adequacy of monitoring at specific sites.”); 91:19-92:3 (Q. Do you have an opinion, Dr. Fogg, that MTBE from any of the 34 stations in this case poses a short- or long-term threat of MTBE contamination to any particular well in Orange County Water District? [Objection] A. I – my opinions are not that specific.”); 98:7-11 (“If you mean that I don't have an opinion that a specific contaminant site can be anticipated to contribute MTBE to a specific water supply well or wells, that's correct, that my opinion is not that specific.”); 112:2-9 (“Q. Are there any specific sites where you have the opinion that the MTBE mass has migrated beyond the monitoring well network? {Objection] THE WITNESS: That's beyond the scope of my testimony.”); 116:8-10 “Opinions on specific stations and plumes are beyond the scope of my opinions and testimony.”)) 36. The District's toxicology expert, Dr. Rudo, opined that "[b]ased on the information in scientific literature, MTBE is a genotoxic carcinogen and as such, has no safe level of exposure, especially in drinking water." (O'Reilly Decl., Ex. 13, Expert Report of Kenneth Rudo (May 31, 2011) at Key Opinions, A, p. 3.) 36. Admitted that Rudo provided that opinion, disputed as to its accuracy, and irrelevant to the issues presented by the motion. 38

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