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)

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