Opinion
9975/01.
Decided January 9, 2008.
The Court tried the instant matter from May 23 until September 6, 2007.
POST TRIAL MOTIONS
Pending before this Court are two motions made by the Plaintiff at the close of the testimony. Plaintiff moved to strike the testimony of defendant's expert, Thomas Maguire, as lacking the requisite support in the scientific community. The Court finds that Maguire's testimony was supported by the facts and had a foundation in the scientific community. Accordingly, Plaintiff's motion to strike his testimony is denied. Plaintiff also moved for a directed verdict at the close of the defendant's case. That motion is also denied.
TRIAL ISSUE
Plaintiff admits that its Plant 1 wells have never been contaminated by MTBE or any other gasoline constituent. Accordingly, Plaintiff's only alleged "present injury" is its claim that MTBE beneath Defendants' present and former service stations poses an "imminent" threat to the Plant 1 wells. Because this alleged "imminent" threat is the present injury for each of Plaintiff's causes of action, the Court directed that trial of this matter be conducted in phases with the first phase to determine whether, as a matter of law and fact, Plaintiff could meet its threshold burden of demonstrating that it had suffered a present injury in the form of a real, imminent and certainly impending threat.
INTRODUCTION
The instant action was commenced by the Plainview Water District ("Water District") against Exxon/Mobil Corporation in June of 2001 by the filing of a summons and complaint. The complaint was amended in February of 2003 to add the Shell defendants and Cumberland Farms. The action seeks damages stemming from the alleged imminent and immediate threat to plaintiff's supply wells from Methyl Tertiary Butyl Ether (MTBE), a chemical added to gasoline in order to permit the gasoline to burn more efficiently and therefore render it less detrimental to the environment.
MTBE is a man-made additive. It is soluble in water, has the ability to travel, is difficult to remediate, does not readily break down and is a regulated substance under state environmental laws. See, generally, Private Well Owners Pay Price as MTBE Contamination Exposes the Lack of Groundwater Protection in Federal and New York Law, 18 Pace Envtl. L.Rev. 135. MTBE has been banned in New York State since January of 2004.MTBE moves quickly through soils, dissolves in groundwater and flows with the same velocity as the groundwater. MTBE is persistent and does not tend to break down with other groundwater contaminants. MTBE's solubility in water as a pure solvent ranges between 48,000,000 to 51,000,000 parts per billion. MTBE's effective solubility as a component of gasoline at 15 percent by volume in the groundwater at 50 degrees Fahrenheit is 7,000,000 to 7,500,000 parts per billion ("ppb"). The New York legislature established a Maximum Contaminant Level ("MCL") for MTBE at 10 ppb. The generally recognized minimum detection level for MTBE is 0.5 ppb. As little as 2,000 micrograms of MTBE will contaminate approximately 52,000 gallons of water to the level of the MCL.
The Plainview Water District is a special improvement district located on the Nassau/Suffolk County border. The Water District supplies water to approximately 32, 000 residents of Nassau County located in Plainview, Woodbury, Syosset and Old Bethpage. The Water District also provides water to numerous commercial establishments, educational facilities, religious institutions, medical facilities and fire departments. The Water District operates six pumping Plants to provide the necessary water to its customers. The instant action involves the Water District's Plant 1. Plant 1 is located at the intersection of Plainview Road/Manetto Hill Road and Old Country Road in Nassau County, New York.
Public water on Long Island is obtained through the aquifer system. The three aquifers used for drinking water on Long Island are the Glacial Aquifer, the Magothy Aquifer and the Lloyd aquifer. The Federal Government has designated the aquifer system in Plainview as a "sole source" since it is the only source for potable water for the residents and businesses. The Water District has no alternative but to use the Magothy Aquifer from which to draw its water supply. In the Plainview area, the water table starts in the Magothy Aquifer. The depth of the water table in the Plainview area is at approximately 70-75 feet below ground surface. The Magothy Aquifer continues to a depth approximately 625 feet in the Plainview area.
At Plant 1, the plaintiff operates two supply wells (hereinafter referred to as well 1-1 and 1-2). Plaintiff's supply wells are screened in the middle part of the aquifer. Plainview water supply wells at Plant 1 are considered sensitive receptors, as they provide potable water to the residents of the Water District.
The deep recharge area corresponds to the highest level of the water table. The deep recharge area of the Magothy Aquifer roughly corresponds to the 5.4 mile corridor along the Long Island Expressway, just north of the Water District Plant 1. According to the site data and United States Geological Survey ("USGS") potentiometric surface maps, Plainview is located within the Magothy Aquifer's deep recharge area.
The two pumps at Plant 1 are permitted to pump at 1200 gpm. Well 1-1 pumps water through a 50 foot screen located at a depth of 440 to 490 feet. Well 1-2 pumps water through a 50 foot screen located at a depth of 444 to 494 feet. Also located at Plant 1 are three sentinel wells which were installed by plaintiff as an early warning system to detect a potential threat of contamination. Monitoring Well ("MW") 1 is screened at 83-93 feet below grade, M W-2 is screened at 173-183 feet below grade and M W-3 is screened at 206-216 feet below grade. The Water District recently replaced the pump at Well 1-2. Prior to this replacement, the pumps operated below the 1200 gpm capacity. During the course of the trial, plaintiff was forced to shut down Well 1-2 due to a detection of 1,1,1-Trichloroethane above the MCL. According to the testimony, some of the Water District's wells will be out of service either due to unrelated contamination problems or overhaul.
The defendants are corporations that owned, operated, franchised and/or supplied gasoline to service stations located at the subject locations.
The Mobil Station was operated on property owned by defendant Federated Associates at 1101 Old Country Road from 1954 until August of 1997. This station was located 450 feet from Well 1-2 and 800 feet from Well 1-1. The station used Underground Storage Tanks (UST) which leaked significant amounts of gasoline during the course of defendant's operation of the station. Exxon/Mobil has admitted that it owned the USTs that were present at the location.
The Shell Station located at 1099 Old Country Road also operated since 1954. The company ceased operations at the site in August of 2005. This station is located about 400 feet from Well 1-2 and about 800 feet from Well 1-1.The subject property was owned by the Shell Oil Company until it was transferred to defendant Motiva Enterprises, LLC in 1998. This station used USTs to store gasoline. There were gasoline leaks at this location during the operation of the station and Shell has admitted that it owned the USTs that were present at the location.
The Gulf station located at 1098 Old Country Road was operated by defendant Cumberland Farms ("CFI") from 1986 until the present. The station is approximately 200 feet from Well 1-2. This station uses USTs to store its gasoline and there were spill incidents also at this location. Cumberland Farms has admitted that it owned the USTs.
The New York State Department of Environmental Conservation (NYSDEC) is the lead agency with regard to investigation and remediation of contaminated sites throughout the State of New York. The NYSDEC has the authority to order various remedial measures to be taken and to monitor those sites to ensure that the proper "clean-up" methods are being adhered to. The NYSDEC enforces the State's MCL for contaminants. Additionally, the Nassau County Department of Health and Nassau County Fire Marshal's Office have jurisdiction with regard to the groundwater and USTs respectively.
WITNESSES
Plaintiff presented the deposition testimony of Angela Pimental. At the time of her deposition, Ms. Pimental was a senior project manager for Cumberland Farms.Ms. Pimental's testimony was followed by the deposition testimony of Michael Lamarre. Lamarre is a civil engineer and was a major projects manager employed by Exxon Mobil Corporation.
Plaintiff next presented the deposition testimony of Marjorie Hong. At the time of her deposition, Hong was a staff project manager/senior environmental engineer for Shell since 2002.
Plaintiff also presented the deposition testimony of Robert Rule. Rule was hired in 1998 as a senior project manager for Shell Oil. As a senior project manager, Rule would manage retail sites in the groundwater proactive program. Rule managed these sites until Marjorie Hong became the new project manager in 2001. In particular, Rule managed the groundwater assessment program for the Plainview area for about 2-5 months until Ms. Hong fully transitioned into her position.
Additionally, plaintiff presented the deposition testimony of Steven Trifiletti, employed by Exxon/Mobil Corporation as a retail construction manager for approximately four years in the late 1980's and early 1990's. In the mid-1990's he was employed as an environmental engineer, handling groundwater, soil, and air issues at various sites. In approximately 2001 he became project manager for a global remediation program that was established by Exxon/Mobil.
Plaintiff's first witness to testify at trial was Gary Brown. Brown is an environmental consultant and president of RT Environmental Services. Brown stated that environmental engineers are retained to investigate sites and to determine whether contaminants are in the ground and whether cleanup is needed. He received a BS degree from Syracuse in 1973 in Environmental Engineering. He completed additional course work in data management, hydrology, and well management. Brown is a certified professional engineer in 20 states including New York, New Jersey, and Pennsylvania.
Testifying next for the plaintiff was Robert Holzmacher . Holzmacher is a consulting civil and environmental engineer and is licensed in New York. He obtained a bachelor of science in civil engineering in 1982 with an emphasis on geotechnical engineering from Renssalaer Polytechnical Institute. Holzmacher completed one year of graduate work at Renssalaer for geotechnical engineering with an emphasis on computer modeling and geostatistics. Holzmacher received a fellowship to Cornell University in the civil engineering department with an emphasis on computer modeling, numerical modeling, and physical modeling for hydraulic processes and hydrogeology. During this fellowship, he worked as a research assistant where he did modeling of hydraulic processes, including ground and surface water. Holzmacher is a member of the American Society of Civil Engineers, the American Water Works Association, Long Island Water Conference and the National and New York State Societies of Professional Engineers.
Plaintiff called Robert Lewis as a witness. He is a hydrogeologist, a groundwater scientist with Worley Parsons Komex in Golden Colorado. He stated that a groundwater scientist is an individual who studies groundwater flow and processes in underground reservoirs. His educational background includes a master's degree in hydrogeology, from Colorado School of Mines and a bachelor's of science from University of Colorado.
Paul Granger, Superintendent of the Plainview Water District since 1996 also testified. His educational background includes a bachelor of science in civil engineering from Polytechnic University and an associate's in applied science in civil engineering technology from Nassau Community College. He is a licensed professional engineer in the state of New York, holding a 1 B water Plant operator certification in New York.
Robert Humann testified that he is currently employed at the firm of Holzmacher, McLendon and Murell, PC. also known as H2M. Humann holds the positions of vice president and chief water resources engineer at the company. He is a licensed professional engineer in the states of New York and New Jersey. H2M has been a consultant at the Plainview Water District for over 40 years. He has worked on various projects with the Plainview Water District over the past 20 years he has been at H2M. These projects included water resource, water treatment, water supply, and water storage.
Defendants offered the testimony of Thomas F. Maguire, an expert hydrogeologist. Maguire has approximately 21 years experience investigating and remediating gasoline and MTBE contamination at sites in at least 25 states, including on Long Island.
FACTS
In 1979, contamination beneath the Mobil station was discovered during upgrades of the station's underground storage tanks. There were other spill incidents in 1991 and 1993. MTBE was first discovered in August of 1997 when the soil was tested during the closure of the Mobil station. As part of the remediation, approximately 1,018 tons of impacted soil were excavated and removed from the site. Additionally, Exxon/Mobil has implemented several remedial and corrective action plans to investigate and remediate the property. These plans were approved by the New York State Department of Environmental Conservation. The plans have included the installation of 31 separate monitoring wells or well clusters, a soil vapor extraction ("SVE") system to treat soil contamination, and an air sparge system to treat groundwater. Plaintiff's expert, Gary Brown, testified that Exxon/Mobil's remedial efforts at the site have been very successful and MTBE levels beneath the property have been declining due to natural attenuation.
Shell pro-actively implemented a Groundwater Assessment Program in order to monitor their properties. In September 2002, as part of this program, Shell installed three monitoring wells at their station and took groundwater samples from those wells. Those samples revealed levels of MTBE in the groundwater beneath the station. Shell's contractor, Northeast Environmental Solutions ("NES"), informed the NYSDEC that MTBE and other gasoline constituents had been detected and the NYSDEC began monitoring the situation. NES also informed Plaintiff's Superintendent, Paul Granger, that MTBE had been detected at the "Shell" station. Shell, at the direction of the NYSDEC, installed additional monitoring wells in 2002 and 2003. Shell monitors those wells quarterly and reports the finding to the NYSDEC. Shell also arranged to conduct joint sampling of the monitoring wells installed by Exxon/Mobil at the former Mobil station located at 1101 Old Country Road and at other locations downgradient of the former Mobil service station. The results of that sampling were provided by Shell to NYSDEC. Shell also provided the findings to the Plainview Water District. In January 2004, Shell entered into a Stipulation Agreement with NYSDEC pertaining to the environmental investigation and remediation to be performed at the Shell station at 1099 Old Country Road. That agreement required Shell to perform an environmental investigation and to submit a Corrective Action Plan designed to address environmental conditions at the service station. On September 22, 2004, in accordance with the Stipulation Agreement, Shell's contractor GES submitted a Corrective Action Plan to the NYSDEC for the service station. The plan called for direct source removal by excavating the existing tanks, dispensers and product lines, including soil excavation, and continued groundwater monitoring. NYSDEC approved the Corrective Action Plan by letter dated October 21, 2004. In August/September 2005, the Shell station was decommissioned as a gasoline service station and sold to the station operator. As part of that decommissioning, the underground storage tank system at the station was removed by a contractor, Island Pump Tank. The equipment removed included the underground storage tanks at the station, all associated lines and piping, and the dispenser islands and related equipment. The underground storage tanks were determined to be structurally intact with no holes or cracks when removed. Approximately 1,540 tons of soil from the area around the tank field was also removed.
The first incident at the Gulf Station occurred in February 1991 after a tank test failure. The failure resulted in a spill incident case initiated by the NYSDEC. There is no evidence any product was released from the underground storage tanks as a result of this event. The tanks were re-tested the following month and passed. Another incident file was opened after a heating oil and second underground tank were removed from the Gulf property in April 1991. NYSDEC records show that the material involved was No. 2 fuel oil and the amount spilled as "0.0" gallons. CFI's contractor removed approximately 12 yards of soil from beneath the station. CFI also installed groundwater monitoring wells, in which it sampled for and detected MTBE at a concentration of 4.7 parts per billion ("ppb") in May 1993. This was less than one-tenth of the then-applicable Maximum Contaminant Level ("MCL"). By letter dated September 28, 1993, NYSDEC closed its file and imposed no further requirements on CFI. Fourteen years elapsed since the 4.7 ppb detection of MTBE by CFI and no MTBE has been detected in the Plant 1 wells. After an October 2001 tank test failure, CFI repaired the tank, retested it and found that the tank was tight and that there had not been a release. NYSDEC closed the case by letter dated April 9, 2003. In 2004, CFI, at the request of NYSDEC, hired Leggette, Brashears Graham ("LBG") to conduct a subsurface investigation at the Gulf station. LBG submitted its report to the NYSDEC, which has been overseeing work at the Gulf site. After receiving and reviewing this report, NYSDEC did not direct CFI to perform any remediation at the Gulf station. Nor has NYSDEC requested CFI to install any additional or deeper monitoring wells. Furthermore, NYSDEC has not asked CFI to enter into a stipulation agreement concerning the property. The environmental site investigation work performed by LBG failed to show volatile organic compounds ("VOCs") above New York State soil cleanup standards beneath the Gulf station. Also, groundwater sampling at the Gulf station has not shown any floating gasoline or BTEX above New York groundwater quality standards. The highest level of MTBE detected in groundwater at the Gulf station site was 479 ppb in MWNo.1 in November 2004. The MTBE levels have been trending downward since that date. MTBE was not detected in MW#
1 in March 2007, and only 1 ppb was detected in July 2007. MTBE has never been detected in MW#
3. Therefore, for the last two quarterly groundwater sampling events at the Gulf station, there was no MTBE detected in groundwater in the two monitoring wells closest to Plant 1.Groundwater flow at the Gulf station has always moved to the south or southeast away from Plant 1.
In the late 1970's, defendants Shell and Exxon/Mobil had significant releases of product at their respective stations. At the time, the leaded gasoline contained EDB and 1, 2-DCA, chemicals that behave much like MTBE in groundwater. Although these releases at the former Shell and Mobil sites were discovered nearly 30 years ago, no constituent of leaded (or unleaded) gasoline including EDB, 1, 2-DCA, BTEX or MTBE ever has been detected in the Plant 1 supply or sentinel wells.
Following the findings of MTBE beneath their respective stations, Exxon/Mobil and Shell took steps to remediate their properties. The remediation was at the direction and order of NYSDEC.
As part of their remediation program, Exxon/Mobil operates a Soil Vapor Extraction ("SVE") system which removes MTBE from soil and an air sparge system which removes MTBE from groundwater. In addition, they removed contaminated soil from the area. Plaintiff's expert Gary Brown testified that Exxon/Mobil's systems have been very successful.
Shell took other steps to remediate. The underground storage tank system was removed by a contractor in September of 2005. During that removal, approximately 1,540 tons of soil were excavated from the property and hauled off-site for disposal. Readings taken during the excavation demonstrated that the endpoints of the excavation did not contain any levels of contaminants that exceeded NYSDEC soil cleanup standards.
Gary Brown testified that if the source area were removed, "there should be no significant future impact from rain water washing through the soils and causing more contamination in groundwater." Since the removal of the alleged source of the contamination, the underground storage tank systems and distribution systems, and the excavation of soil, the levels of MTBE detected in the monitoring wells at the property have declined. As of the most recent sampling event, conducted on June 15, 2007, the highest level of MTBE detected on the former Shell station property was 10.3 ppb in MW-6. Four of the wells on the former Shell property were non-detect for MTBE (MW-1R, MW-2R, MW-4, MW-5). MW-7 had declined from a maximum concentration of 12,800 ppb of MTBE in 2003 to an MTBE detection level of 2.87 ppb in June 2007. No MTBE was detected in MW-8, which is located upgradient of the former station in the right-of-way for Old Country Road, in the direction of the Plant 1 wells.
As the U.S. Environmental Protection Agency ("USEPA") in a report entitled "Monitored Natural Attenuation of MTBE as a Risk Management Option at Leaking Underground Storage Tank Sites" has stated, "At field scale, the concentration of MTBE in a well can change through the combined influence of dilution and dispersion, biodegradation, sorption, and mixing of the contaminant plume with cleaner water in a monitoring well. It is usually impossible to separate the individual contributions of each process." USEPA has documented MTBE biodegradation specifically on Long Island. MTBE can degrade in both aerobic and anaerobic conditions. The air sparging system at the former Mobil site facilitates biodegradation of MTBE by increasing the dissolved oxygen content in groundwater. Maps depicting MTBE concentrations at various depths clearly show that the concentrations decrease with depth, that the area of highest concentration has contracted in size, and that the mass of MTBE has become more attenuated as it has moved downgradient away from the Plant 1 wells. Because the source of the MTBE in soil and groundwater has been and continues to be remediated, MTBE concentrations beneath Defendants' respective station properties continue to decline.
The NYSDEC has received and continues to receive reports as to the condition of the groundwater and the aquifer in the vicinity of plaintiff's Plant 1. It has determined that there is no threat to plaintiff's supply wells and that the water has not been contaminated by gasoline. The NYSDEC also created a site conceptual model which shows that MTBE beneath Defendants' station properties does not pose a threat to the Plant 1 wells.
Plaintiff's boring and gamma logs as well as plaintiff's experts testified that wells 1-1 and 1-2 have multiple clay layers and lenses beneath Plant 1. Boring logs for monitoring wells at the former Shell station confirm the existence of a clay layer at approximately 35 feet below ground surface beneath at least part of the former Shell station property. These boring logs are consistent with well construction logs from Shell's 1978 investigation and remediation at the 1099 Old Country Road station. Similarly, boring logs for the monitoring wells located at the former Mobil station confirm the presence of shallow clay lenses at approximately the water table (seventy feet) and shallower. A boring log for a monitoring well at the Gulf station also confirms the existence of clay lenses beneath that station.
The NYSDEC's site conceptual model indicates multiple clay layers in the subsurface between wells 1-1 and 1-2 and the former Mobil station. The NYSDEC's conceptual model recognizes these clay layers as confining units. It also indicates that groundwater flows to the southeast, away from the Plant 1 wells.
USGS has confirmed that multiple clay layers and lenses exist in the subsurface beneath Plainview, and that these various clays combine together to "significantly impede the vertical movement of ground water." Specifically, USGS has calculated that groundwater moves one hundred times more easily horizontally in the subsurface than it does vertically in the vicinity of Plainview an anisotropy ratio of 100:1. Interbedded layers and lenses of clay in the Magothy "act together and the combined influence of this being interbedded, being compressed, being squeezed in over time, [is] that they combine together to significantly impede the vertical movement of groundwater."
Additionally, the New York State Department of Health ("NYSDOH") authorized the creation of a Source Water Assessment Program for every public water supply well in Nassau and Suffolk counties (the "LISWAP") which was completed in 2003. The LISWAP was performed to comply with the Federal Safe Drinking Water Act. The report was completed by using computer modeling and geographic information system tools and constitutes a comprehensive analysis of every supply well on Long Island. Upon completion, the report was provided to every operator of those wells.
According to the LISWAP, the source water contribution areas for the Plant 1 wells are located generally to the north. Thus, groundwater within the zone moves from the north downgradient to the south/southeast until it is captured by the Plant 1 supply wells. The "capture zone" of a well is the three-dimensional area from which the well draws water under pumping conditions.
Within the source water contribution zone is the Plainview Industrial Park ("Industrial Park"). The Industrial Park is located upgradient from Plant 1 and near the Long Island Expressway in Plainview. The Industrial Park has been the subject of multiple investigations by NYSDEC. The facilities in the Industrial Park were not connected to sewers until approximately 1987. Prior to that time, they used cesspools and leaching pits to dispose of various chemicals. Since 2001, various contaminants unrelated to gasoline have been detected in wells 1-1 and 1-2, including ammonia, bromoform, nitrate, chloride, chloroform, 1, 1-dichloroethane, 1, 1-dichloroethene, 1, 1, 1-trichloroethane, trichloroethene, bromodichloromethane, chlorodibromomethane, and sulfate. Plaintiff and its consultants previously asserted that the contaminants beneath the Industrial Park pose a threat to wells 1-1 and 1-2. NYSDEC has stated that groundwater beneath the Industrial Park flows to the southwest that is, in the direction of wells 1-1 and 1-2. Many of the contaminants detected in groundwater at the Industrial Park also have been detected in the vertical profile boring and monitoring wells on plaintiff's property as well as in the groundwater beneath the upgradient Industrial Park. The LISWAP accurately predicted the arrival time of contaminants from the Industrial Park at the Plant 1 wells. During the course of this trial, specifically on July 3, 2007, Plaintiff detected 1, 1, 1-trichloroethane in well 1-2 at a concentration exceeding the MCL established by the NYSDOH. Additionally, other regulated contaminants, including 1, 1-dichloroethane, trichloroethene, and tetrachloroethene, were detected in well 1-2. As a result of those detections, Plaintiff was required to take supply well 1-2 out of service.
Under certain pumping conditions, the "capture zones" of the Plant 1 wells could extend downgradient to an area deep beneath defendants' sites, although those "capture zones" would not extend vertically to the water table or to depths where MTBE is known to exist. Thus, the Plant 1 wells do not and cannot "capture" shallow groundwater from beneath the defendants' sites.
EXPERT TESTIMONY
J. Robert Holzmacher is a civil engineer and an expert on groundwater. He does not have a degree in geology, geophysics, sedimentology, hydrogeology, geochemistry, microbiology or hydrology. He is not an expert in biodegradation or bioremediation. However, he did testify that he completed course work in various areas while he obtained his degrees. Prior to this case, Holzmacher had never conducted any environmental investigation pertaining to gasoline stations or leaks of gasoline or MTBE. Holzmacher has never authored any peer-reviewed articles regarding monitored natural attenuation of MTBE in groundwater.
Holzmacher did not perform any analysis and did not offer any opinion as to when, if ever, MTBE might be detected in the Plant 1 supply wells. He did, however, develop a "site conceptual model" which shows that MTBE could be drawn into the Plant 1 wells. Neither well has ever had a detection of EDB or 1, 2-DCA.
Holzmacher's explanation for the absence of EDB and 1, 2-DCA from the Plant 1 wells was that the 30-year old gasoline releases had been "retarded by the clay" beneath the sites. He conceded that his "steady state" uniform flow field analysis "eliminates the time factor" and, therefore, was incapable of making time estimates. Nevertheless, Holzmacher testified that, based on the vertical groundwater velocity he calculated, it theoretically would take 48 years for MTBE to move from beneath Defendants' current and former stations to the closest Plant 1 well. In determining the theoretical capture zone for well 1-2, Holzmacher used a Jacob Bear "uniform flow field" analysis. Holzmacher stated that in his opinion, the capture zone included all or part of the subsurface areas beneath Defendants' stations. According to the defendants, this "uniform flow field" analysis was purely "theoretical and textbook," not sophisticated enough to make real world calculations, and made several "significant simplifications."
The Court finds that none of the conditions of the Jacob Bear equation actually exist at the Plant 1 location. On cross-examination, it was revealed the equation applies only to an undisturbed aquifer where no other wells are pumping. The Magothy aquifer is not undisturbed because a number of other wells are pumping in the vicinity of Plant 1, including supply wells at five other facilities operated by Plaintiff. The Jacob Bear equation applies to a single well pumping at a constant rate 24 hours a day, 365 days a year, a scenario known as steady state. Here, the Plant 1 wells do not operate in a steady state condition.
In addition, defendants presented evidence that the subject wells are partially penetrating since the wells are designed with a 50-foot screen at the bottom of each well. However, the Jacob Bear equation assumes that the single subject well is screened over the entire length of contact with an aquifer- i.e., a "fully penetrating well."
The Jacob Bear equation also assumes that an aquifer is homogeneous- i.e., composed of one type of material. Defendant showed that the Magothy Aquifer in the vicinity of Plant 1 is heterogeneous, not homogeneous.
Further, the Jacob Bear equation assumes that the capture zone for a well is infinite and, as described by Holzmacher, extends all the way to the North Pole. Defendant presented evidence that the capture zones for wells 1-1 and 1-2 are not infinite and do not extend to the North Pole.
In addition, the Jacob Bear equation applies only to isotropic aquifers-that is, an aquifer in which horizontal hydraulic conductivity and vertical conductivity are equivalent. Defendants showed that the Magothy Aquifer in the vicinity of Plant 1 is anisotropic, not isotropic.
Finally, the Jacob Bear equation applies only to a confined, non-leaky aquifer and, therefore, assumes there is no rainfall recharge. Defendant showed that the Magothy Aquifer in the vicinity of Plant 1 is a leaky and semi-confined aquifer and in fact, rainfall recharge is the only source of water in the aquifer.
Although Holzmacher admitted that natural attenuation processes like diffusion, dispersion and dilution reduce the concentrations of MTBE in a plume, his "mass balance" uniform flow analysis failed to consider how these natural attenuation processes were affecting the MTBE here. He further acknowledged that his site conceptual model's assumption that the Plant 1 area was in a "deep recharge" area was contradicted by NYSDEC's conceptual model. Holzmacher acknowledged that his predicted "zone of capture" for the Plant 1 wells also was contradicted by NYSDEC's conceptual model, which shows the Plant 1 wells' "zone of capture" not extending to shallow groundwater beneath the Defendants' sites. He admitted that NYSDEC's site conceptual model was validated by the fact that (a) it predicted no gasoline constituent would impact the Plant 1 wells from Defendants' sites, and (b) in fact, no gasoline constituent has ever been detected in the Plant 1 wells.
Holzmacher conceded that it was "important to understand the depositional setting" in the vicinity of Plainview "to understand how contaminants may move into groundwater". However, he misstated the period when the relevant depositional setting in this case ( i.e., the Magothy Aquifer) was formed. Holzmacher also incorrectly identified the nature of the materials which comprise the Magothy Aquifer. He also misidentified the depth and location of the Magothy Aquifer on multiple occasions.
Defendants contend that plaintiff's expert's reliance on the Jacob Bear equation to calculate a theoretical capture zone for wells 1-1 and 1-2 is inappropriate because the conditions for applying the Jacob Bear equation do not exist at Plant 1. Defendants further contend that the diagram Holzmacher developed for plotting a theoretical "capture zone" incorrectly located wells 1-1 and 1-2 closer to Defendants' stations than they actually are, and the scale used on his map was inaccurate.
Holzmacher's testimony did not establish the existence of an "imminent," "certainly impending," "actual and at hand" and "real and immediate" threat to the Plant 1 wells.
Groundwater moves both horizontally and vertically through the Magothy Aquifer. However, it is more difficult for water to move vertically in the Magothy Aquifer because clay layers and lenses significantly impede the vertical movement of groundwater. Using data from Holzmacher's pump test, defendants' expert, Maguire, calculated the vertical and horizontal velocities of groundwater in the area of Plant 1. He calculated that groundwater in the area moves horizontally at a rate of about 73 feet per year and vertically at a rate of about 7 feet per year and 4.5 feet per year under pumping and non-pumping conditions, respectively. Maguire testified that it would take at least 52 years for groundwater at the water table beneath defendants' sites to move vertically 370 feet to the depth of the Plant 1 well screens. He stated because this vertical groundwater movement would be accompanied by horizontal movement south-southeast and away from the Plant 1 wells, by the time groundwater descended vertically to the depth of the well screens it would also have moved horizontally downgradient approximately 3,796 feet away from Defendants' sites.
Assuming Holzmacher's theoretical "zone of capture" analysis to be correct, defendant contends that the capture zone predicted by that analysis extends no more than 1,790 feet downgradient of the Plant 1 wells. Therefore, if MTBE contamination continued to move with the groundwater flow, it would be far beyond the theoretical capture zone of the Plant 1 wells and therefore could not be drawn into the wells. Groundwater elevation measurements taken at both the Mobil service station, and at Plant 1 during Holzmacher's pump test, show very minor vertical gradients in the range of about .001 to .02 feet. These measured gradients are significantly lower than would be present if Plant 1 or Defendants' properties were in a deep recharge zone. Evidence introduced at trial confirms that the deep recharge zone is actually located north of Plant 1 in approximately the area of the Long Island Expressway and the Plainview Industrial Park. Based on his analysis of vertical gradients and review of scientific literature, Maguire concluded that both Plant 1 and Defendants' sites are not in a deep recharge zone. Although Holzmacher testified that Plant 1 is located in the deep recharge area, the USGS has never identified Plant 1 as being within the "deep recharge area" on Long Island. In fact, a 1966 USGS report shows Plant 1 as being located outside the deep recharge area. NYSDEC's conceptual model also did not consider Plant 1 or the service station sites to be located within the deep recharge area. Based on the evidence the Court finds that the Plant 1 wells are outside the deep recharge area.
Holzmacher conducted a pump test of the Plant 1 wells in July 2006. However, numerous flaws occurred in the pump test. Holzmacher failed to follow his own standard operating procedure ("SOP"), which requires a "quiet time" before conducting such a pump test. He failed to follow the SOP requirement to collect precipitation data. He failed to calibrate the barometer he used, resulting in atmospheric readings that have never been previously recorded on this planet. He failed to provide for a "recovery period" for the wells. He failed to use any barometric efficiency method to determine the effect that barometric pressure was having on the water levels in the monitoring wells.
Assuming that the pump test had been properly conducted, the results do not support a finding that the Plant 1 wells capture groundwater from downgradient shallow areas of the aquifer beneath defendants' sites. The variations in water levels measured during Holzmacher's pump test can be explained by background "noise" such as barometric pressure and Earth tides. Therefore, the test does not establish that the pumping of wells 1-1 and 1-2 has any effect on water levels at the water table, including beneath defendants' station sites. Plaintiff failed to introduce any evidence at trial to establish that the groundwater flow direction to the southeast could be or has reversed to the northwest toward the Plant 1 wells. Holzmacher testified about alleged flow reversal utilizing water elevation data collected by defendants (hereinafter "groundwater contour analysis"). Much of Holzmacher's groundwater contour analysis was based on Plant 1 pumping data collected before Plaintiff's SCADA system became operational and, therefore, was of "questionable quality" and reliability. Defendant contends that the "reversal of flow" Holzmacher purportedly observed was not a "reversal" at all. Instead, the groundwater flow "impacts" Holzmacher claimed to observe followed no discernable pattern sometimes showing flows to the east, northeast or southwest, but never to the northwest in the direction of the Plant 1 wells. In fact, two "reversals" or "impacts" Holzmacher claimed to observe at the Shell station occurred when the Plant 1 wells were not pumping. Holzmacher mistakenly identified "flow reversal" at the Gulf station, located closest to the Plant 1 wells. Holzmacher omitted from his analysis of the Mobil site several groundwater contouring events which showed flow to the southwest, south or southeast ( i.e., no flow "reversal") during times when both Plant 1 wells had pumped almost full-time for several months in a row.
Brown also offered opinions regarding the alleged "reversal" of groundwater flow between the former Shell station and the Gulf station. However, he admitted that he is not an expert in hydrogeology, chemistry, contaminant modeling or groundwater modeling. Brown merely speculated that certain MTBE detections at the Gulf station could somehow be attributable to the former Shell station. Brown testified that he performed no independent analysis of the fate and transport of MTBE in groundwater and had no opinions about the speed or direction MTBE was moving in the groundwater. He further testified that he did not determine a "zone of contribution" for the Plant 1 wells. Additionally, he testified that he had not considered the source water recharge zones for those wells as determined by the Long Island Source Water Assessment Program. Brown opined that Plant 1 is "a good water supply" and that the water provided from the Plant 1 wells was safe to drink at the time of his testimony. Brown testified that there are "layers of heavy clay" at the area in question and that he had no data as to any reversal in the flow of the groundwater. Brown stated that the volatile organic compounds that were detected in the Plant 1 wells had come from the upgradient Plainview Industrial Park. Brown acknowledged that leaded gasoline releases had occurred decades ago at the former Shell and Mobil branded stations, and that there was no evidence that such releases had ever impacted the Plant 1 wells.
Brown admitted that Exxon/Mobil had complied with NYSDEC's directives for delineating and remediating contamination, and that soil vapor extraction and air sparge remediation systems in the vicinity of Plant 1 had been very successful in remediating contamination from soil and groundwater. Brown testified that the area that would be expected to be the source of MTBE at the former Shell station the underground tanks, lines, dispensers, and the surrounding soil had been remediated and removed from the site and therefore "there should be no significant future impact from rain water washing through the soils and causing more contamination in groundwater. Brown admitted that MTBE concentrations were declining due to natural attenuation.
Brown used various reports including those of Holzmacher to support his claimed reversal of groundwater flow. He preformed no independent analysis of the site. Despite that fact, Brown and Holzmacher differ on the source of the MTBE in MW-8. Additionally, Brown made unsubstantiated statements suggesting that certain tank-filling events may have caused variations in MTBE concentrations at the Gulf station.
By analyzing vertical gradients in nested well pairs at the Mobil site during times when the Plant 1 wells were and were not pumping, defendants' expert Maguire concluded that there was no correlation between the pumping of the Plant 1 wells and observed changes in the vertical gradients at the Mobil site.
The Court finds credible Maguire's opinion that, based on analysis of groundwater elevation data at all three defendants' sites, there is no evidence that groundwater flow reversal to the northwest has occurred, or that pumping at the Plant 1 wells causes any fluctuation in water levels at defendants' sites. Likewise, the distribution of contaminants in the subsurface supports the finding that groundwater is flowing to the south-southeast, away from Defendants' sites and away from the Plant 1 wells.
Brown's testimony did not establish the existence of an "imminent," "certainly impending," "actual and at hand" and "real and immediate" threat to the Plant 1 wells.
Plaintiff's witness, Robert L. Lewis is an expert on groundwater modeling and is employed by Worley Parsons Komex. Lewis's testimony was based on a computer model designed to predict groundwater flow and the movement of contaminants in the subsurface. Lewis offered his opinion as to when the contamination would impact the plaintiff's wells.
Lewis testified that a computer-generated model should be a representation of reality. It is a computer-generated simulation of an aquifer which can be used to make predictions about the movement of groundwater. A contaminant transport model uses the results of a groundwater flow model to predict how contaminants may move in the groundwater. A model consists of various assumptions in this case, assumptions about the characteristics of the aquifer and contamination and well-pumping conditions. The modeler inputs data values based on those assumptions, and the model is run to generate results. The accuracy and reliability of those results depends, in large part, on the quality of the data that are input into the model by the modeler. It is generally accepted in the field of groundwater modeling that to ensure reliable and accurate results a model must be both calibrated and validated.
Calibration is the process by which the modeler adjusts the data inputs until the model produces results that reasonably match conditions in the real world. Validation is a process by which a calibrated model is run using conditions that have actually occurred, such as historical pumping rates, to determine if, in fact, the model will generate results matching those which occurred in reality. It is also generally accepted practice to perform a sensitivity analysis, which is a method of identifying the parameters in the model that have the greatest impact on the results of the model. In conducting a sensitivity analysis, a modeler varies a parameter in the model to determine its effect on the model.
Most of Lewis' computer modeling experience relates to retrospectively determining when historical contamination releases occurred at manufactured gas Plants; not prospective modeling to predict the future arrival time of contaminants at a public water supply well. Other than the current case, Lewis has never modeled the transport of MTBE in groundwater on Long Island or in the Magothy Aquifer. Although Lewis has performed groundwater flow modeling for one other site in New York, he was not required to perform contaminant transport modeling. Lewis was not personally familiar with the sites at issue in this case or with features of the area in the vicinity of the sites. He never visited Plant 1 or the Defendants' sites. He did not know whether the Gulf station is still in operation. He was not aware of whether the former Shell and Mobil properties are currently paved. Lewis was not familiar with the region including the major highways.
Lewis' "groundwater flow model" for this case relied on a software program developed by USGS called MODFLOW. MODFLOW is generally accepted in the scientific community. To create his groundwater flow model, Lewis began with a regional groundwater flow model that relied on data from the LISWAP model. Lewis then modified his regional model by substituting what he said was data about local aquifer characteristics in the vicinity of Plant 1, generating a site-specific groundwater flow model. Specifically, Lewis said that he input data for (1) recharge rates based on values from the LISWAP model; (2) hydraulic conductivity values that he claimed were based on information from Plaintiff's and Defendants' well boring logs; (3) groundwater flow direction based on water elevation data from the Defendants' consultant reports; and (4) the locations of the Plant 1 supply wells and Defendants' sites.
"Recharge" refers to the amount of water that percolates into the aquifer from precipitation. The recharge values in Lewis' site-specific groundwater flow model apply only for approximately the first three days of simulated time. No recharge occurs in the model for the remaining simulation period of nearly 7.5 years. In other words, Lewis's model assumes that there will be no rain in Plainview for nearly 7.5 years. In reality, the average recharge from precipitation in Plainview is 9.86 million gallons per day (or 3.6 billion gallons per year), and there has never been any period of years in which Plainview received no rain.
"Hydraulic conductivity" or permeability refers to a material's ability to transmit fluid. The higher the conductivity number for a particular material, the easier water moves through that material. Hydraulic conductivity is measured both horizontally ( i.e., the ease with which groundwater moves horizontally) and vertically ( i.e., the ease with which groundwater moves vertically.) In a groundwater flow model, the presence of clays, silts, sands, and other types of aquifer materials is simulated by assigning appropriate "hydraulic conductivity" values to each discrete area of the model ( i.e., the model "cells") where such materials are represented to exist. Thus, for example, because clay is less permeable than sand, the cells of a model that are meant to represent clay-rich areas of the aquifer should have lower "hydraulic conductivity" values than those cells of the model that are meant to depict sand.
Lewis' site-specific groundwater flow model used hydraulic conductivity and anisotropy values that do not accurately reflect what is known to exist in the aquifer beneath Plant 1 and Defendants' sites. For example, Lewis testified that he intended to account for the presence of subsurface clays by using a lower hydraulic conductivity value (25 feet per day) in layer 3 of his model than in other parts of the model which were intended to represent the presence of higher hydraulic conductivity materials such as sand. However, Lewis actually used a lower hydraulic conductivity value of 10 feet per day in that area of his model meant to represent the sand and gravel layer where the Plant 1 wells are screened. Thus, in Lewis' model, the layer of high conductivity material from which the Plant 1 wells draws its water is depicted as being less permeable than the area of the model that is supposed to represent a lower permeability clay-rich zone. In reality, the Plant 1 wells are screened in areas of the aquifer that contain mostly sand and gravel and are, therefore, more permeable (i.e., have higher hydraulic conductivity) and allow water to flow more readily than areas rich with clay.
"Anisotropy" refers to a difference in horizontal versus vertical characteristics of an aquifer, such as hydraulic conductivity, and is often expressed as a ratio. For example, where the materials in an aquifer permit groundwater to move horizontally four (4) times more easily than it moves vertically, "horizontal hydraulic conductivity" is stated as 4; "vertical hydraulic conductivity" is stated as 1, and the "anisotropy" of that aquifer is stated as 4:1. It is well understood that groundwater in the Magothy Aquifer moves more easily horizontally than vertically, with the general anisotropy ratio of the aquifer being 100:1. Holzmacher stated several times at trial that anisotropy ratios in the Magothy Aquifer ranged from 10:1 to 100:1, with 100:1 being the "standard value" for the aquifer. This "standard value" of 100:1 is further supported by published USGS reports for the Magothy Aquifer. Nevertheless, several layers in Lewis' site-specific groundwater flow model (layers 1, 2, 3, 4, 5, and parts of 6) depict zones where the anisotropy is 1:1. Parts of Layer 6 in Lewis' site-specific groundwater model, the layer in which the Plant 1 wells are screened, contains a zone with an anisotropy of 1:4. There is nothing in the literature, the field data or the evidentiary record of this case to support such ratios. The anisotropy values used by Lewis in his model were contradicted not only by Holzmacher's testimony at trial, but also by Holzmacher's pump test. Holzmacher calculated an average horizontal conductivity for the Magothy aquifer in the vicinity of well 1-2 of approximately 48 to 62 feet per day. Using data from Holzmacher's pump test, Defendants' expert Thomas Maguire calculated the vertical hydraulic conductivity in the area to be between .22 and .73 feet per day, which is generally about 100 times less than the horizontal conductivity i.e., an anisotropy value of 100:1.
Lewis testified that he calibrated his site-specific groundwater flow model by modifying the inputs for hydraulic conductivity and recharge rates until the model showed groundwater levels matching those observed at the Defendants' sites. Lewis also testified that he validated the model by running it using the rates at which the Plant 1 wells pumped during the time period of Holzmacher's pump test and showing that the model reproduced the drawdown levels observed to occur in the Plant 1 pumping and monitoring wells at that time.
Using generally accepted methods for evaluating models, Maguire determined that Lewis's groundwater flow model was not calibrated or validated. The Court agrees.
In analyzing whether Lewis' flow model was properly calibrated, Maguire calculated the residuals of the flow model by comparing the groundwater elevations predicted by the model to elevations measured in the field. Maguire found a 46 percent error rate in the mean residual of Lewis' model. It is generally accepted that a model like the one created by Lewis should not have an error rate higher than 10 percent. Based on these results, Maguire concluded that Lewis' groundwater flow model was not properly calibrated or validated.
Lewis took the results of his site-specific groundwater flow model and, using a program known as MT3D, created a "contaminant transport model" to predict how MTBE beneath Defendants' sites might move in the groundwater, and when such movement might theoretically impact the Plant 1 wells under different pumping scenarios.
To create his contaminant transport model, Lewis made certain assumptions about the initial concentration and source concentration of the MTBE beneath Defendants' sites. The "initial concentration" value is meant to represent the current levels of contamination that exist at the moment the model simulation begins to run. The "source concentration" value is meant to represent ongoing levels of MTBE that the model assumes will be released into groundwater over a defined period of time. Lewis testified that his initial concentration numbers were based on the maximum MTBE concentration data from Defendants' 2005 groundwater sampling results. Relying upon sampling data from 2005 is an inaccurate method for determining the initial concentration, particularly for a contaminant transport model that had not begun to run as of 2007. Results from 2005 do not match MTBE concentrations measured in the most recent sampling data from Defendants' sites. Sampling conducted after 2005 establishes that MTBE concentrations at each of the Defendants' sites have been decreasing over time. Plaintiff's own expert, Gary Brown, acknowledged that the Shell and Mobil remediation efforts have been effective in removing contamination, which no longer poses a threat to Plaintiff's wells. Moreover, with regard to the Shell site, Lewis erroneously claimed that his "initial concentrations would reflect any remediation at the Shell station" that was conducted in August and September 2005. In fact, the 2005 results relied on by Lewis were all from sampling conducted in March or June 2005, that is, before Shell's remedial efforts, including tank and soil removal, later that year. MTBE levels at the Shell site immediately declined after the tank and soil removal. For the foregoing reasons, the initial concentration values used by Lewis in his contaminant transport model have no support in the evidentiary record and, therefore, are unreliable.
Lewis used a "source concentration" of 10,000 ppb for his contaminant transport model, applying this value to the area representing all Defendants' sites for the entire simulation period of 7.5 years. A 10,000 ppb constant source concentration has no basis in reality. Such a concentration does not presently exist at any of the Defendants' sites, and has never existed at the Mobil or Gulf sites. Indeed, the most recent field data establishes that current MTBE levels are 10.6 ppb beneath the Shell site and 454 ppb beneath the Mobil site. The highest concentration of MTBE ever recorded at the Gulf station was 479 ppb in 2004, and the most recent groundwater sampling results for the Gulf site show MTBE concentrations no greater than 195 ppb. Again, field data conclusively establish that MTBE concentrations at all three service station sites have been decreasing over time. Moreover, a 10,000 ppb source concentration cannot possibly occur in the future at Defendants' sites. All of the tanks and equipment at the former Mobil station were removed more than a decade ago in 1997, and all of the tanks and equipment at the former Shell station were removed 2 years ago. No stations exist at these properties to generate additional MTBE contamination in the future. Likewise, because no gasoline sold at the Gulf station has contained MTBE since 2003, there is no ongoing source of gasoline containing MTBE that could possibly be released into the subsurface at the Gulf station.
Lewis' reliance on a constant source value also fails to account for the various mechanisms that naturally attenuate MTBE in the environment. Lewis' model did not account for diffusion. Lewis' model also did not account for biodegradation, although the program he relied on (MT3D) does have a function for biodegradation and can account for plume decay.
Lewis' contaminant transport model attempted to simulate the movement of MTBE under three different Plant 1 pumping scenarios: (a) "full capacity"; (b) "half capacity"; and (c) a "maintenance cycle." Lewis ran each pumping scenario for a simulated time period of 7.5 years.
In the "full capacity" scenario, wells 1-1 and 1-2 pump continuously at their full design capacity of 1,200 gallons per minute ("gpm") each. This results in a combined pumping rate of 2,400 gpm for 7.5 years, generating approximately 1.24 billion gallons of water per year from the Plant 1 facility. In the "half capacity" scenario, wells 1-1 and 1-2 pump continuously at a rate equal to half their design capacity i.e., 600 gpm each (or 1,200 gpm total). Upon being shown that the Plant 1 wells have met these conditions in the past (without MTBE impacting the wells), Lewis changed his description of the half capacity scenario, saying that it requires that the two Plant 1 wells pump approximately equivalent amounts. On re-direct, Lewis gave still another explanation of the half capacity scenario, saying that it requires that the Plant 1 wells pump approximately 600 gpm on average, but does not require that the wells pump exactly 600 gpm or that they operate continuously. In the "maintenance cycle" scenario, Lewis' model has wells 1-1 and 1-2 pump continuously at full permitted capacity for 2.5 years; then well 1-2 stops pumping while well 1-1 continues at full permitted capacity. Lewis testified that these scenarios do not commence until some undetermined time in the future. Lewis admitted that he does not know when, or if, any of the assumed scenarios might actually take place. Lewis' contaminant transport model relies on pumping scenarios that have never occurred in the past and therefore, there is no basis to expect them to occur in the future.
Both the "full capacity" and "maintenance cycle" scenarios assume that both Plant 1 wells pump simultaneously and continuously 24 hours a day, 365 days a year at 1,200 gpm each for a period of at least 2.5 years. Historical data indicates, however, that the Plant 1 wells have never pumped at full capacity for any period of time approaching 2.5 years. Furthermore, Lewis did not know if the wells had ever run simultaneously at full capacity for a continuous period of just weeks or months. Moreover, there were periods of several months (typically the winter months) during which time one or both of the Plant 1 wells did not run at all.
Although Lewis was vague about what pumping conditions he simulated under his "half capacity" scenario, the conditions actually modeled (both wells pumping continuously at 600 gpm each) cannot exist in reality because the Plant 1 wells are not capable of pumping at that rate. It was testified that when the wells are turned on they pump only at full strength. Upon cross examination, Lewis testified that the "half capacity" scenario was meant to approximate conditions where, on average over a period of time, the wells pump a total volume of water approximately equal to that which would be pumped if the wells could actually run at 600 gpm. Lewis admitted that this scenario had actually occurred in 1999 and 2000 with no MTBE showing up in the Plant 1 wells. Despite the fact that the Lewis model predicts the impact of MTBE on the pumping wells, none actually occurred and therefore renders the model suspect in its ability to predict accurately. The pumping conditions assumed by Lewis are also inconsistent with historical data since they would produce far more water than the Water District could use. Wells at Plaintiff's Plants 2, 4, and 5 are also represented in the model as continuously pumping throughout the duration of the model. The total amount of water that would be produced per year by the wells in the model would be 3.3 billion gallons in the "full capacity" scenario, and about 2.6 billion gallons in the "half capacity" scenario. Yet, the largest amount of water that the Water District has ever pumped in any year since 1980 is 1.9 billion gallons. Average annual system demand since 1990 has been 1.64 billion gallons. Thus, under either the "full capacity" or "half capacity" scenario, the wells in Lewis' model would produce more than twice the amount of water that the entire Water District requires in a year. Under the "half capacity" scenario, the wells in Lewis' model would produce nearly a billion more gallons of water than the entire Water District requires in a year.
In an attempt to support the pumping scenarios relied upon by Lewis, Superintendent Granger testified as to increased future demand and pumpage needs. However, his testimony was speculative, conjectural and contradicted by the evidence. In fact, Granger's testimony confirmed that the pumping scenarios utilized by Lewis were inconsistent with historical usage of wells 1-1 and 1-2. Granger conceded that wells 1-1 and 1-2 have never run continuously ( i.e., 24 hours per day, 7 days per week) even for a period of two months, and certainly not for the 2.5 year-plus period of continuous, simultaneous, full capacity usage envisaged by the Lewis model.
Under the "full capacity" scenario, production from the Plant 1 wells alone would produce approximately 103,000,000 gallons per month which would be significantly greater than the water demand of the entire Plainview Water District during many of the winter months when the Plant 1 wells historically do not operate at all. The full capacity and half capacity scenarios were predicated on speculation regarding future growth in the Water District. Water consumption in the Plainview Water District has been declining for twenty years due to a variety of factors, including a reduction in population from approximately 41,000 in 1989 to approximately 33,000 today and the implementation of mandatory conservation measures.
Upwards of 65 percent of the new demand Granger projected was attributable to a proposed project that has been withdrawn by the developer. Granger could not say when, if ever, the proposed projects on which he based his projections about future pumpage increases would be completed. Operating wells continuously is also inconsistent with good management practice, because water districts should balance pumpage between different wells to minimize wear and tear on equipment and to avoid stressing the aquifer. Although Lewis' model purports to predict how long it would take for MTBE to impact the Plant 1 wells once the pumping scenarios began, he could not state when each or any of the scenarios might commence and, therefore, when MTBE might actually be detected in the Plant 1 wells. Assuming the data relied upon as well as certain contentions he makes were correct for his contaminant transport model, Lewis failed to establish that the threat of such detections in the future is "imminent" or real.
The Court finds Lewis' models fail to predict the impact on plaintiff's wells. Lewis used pumping scenarios and usage rates that had no basis in fact and that the data used in the model was manipulated to achieve a certain result.
Defendants offered the testimony of their expert witness, Thomas F. Maguire, who reviewed numerous documents as well as created a computer model to evaluate the movement of MTBE at this location. Maguire concluded that MTBE beneath Defendants' current or former stations would never migrate to the Plant 1 wells under any scenario. He testified that the concentration of MTBE in the plume as well as the size of the plume is reducing due to natural attenuation processes and active remediation. Maguire also testified that the geography of the area with its clay lenses and layers will significantly affect the movement of MTBE toward the wells. Additionally, Maguire stated that the groundwater moves faster horizontally than vertically in the Magothy Aquifer which would cause the contamination to be more than 2000 feet downgradient and outside of the Plant 1 wells' capture zone by the time it could reach the depth of the capture zone.
Maguire's testimony and opinions are consistent with the NYSDEC's determinations that the Plant 1 wells are not threatened by MTBE as well as the historic and documentary evidence relating to the areas recharge zones and contamination. The Court agrees with these conclusions.
LAW
Plaintiff does not have an ownership right in the water from the aquifer but has a usufructory right to the water, meaning plaintiff is entitled to use the water from the aquifer but does not have a property interest in the aquifer itself. See Sweet v. City of Syracuse, 129 NY 316, 335 (1891); Friedland v. State, 35 AD2d 755 (3d Dep't 1970); Rose v. State, 29 AD2d 1003 (3d Dep't 1968); Westphal v. City of New York, 75 A.D. 252 (2d Dep't 1902).
In a "threat" case such as this, the present injury requirement can be satisfied only if the plaintiff proves, on the evidence at trial, that "[its] threatened injuries are real." Plainview Water Dist. v. Exxon Mobil Corp., No. 9975/01, pgs.7-10 (Nov. 27, 2006); Plainview Water Dist. v. Exxon Mobil Corp., No. 9975/01, slip op. at 4 (May 22, 2002) (Plaintiff must prove that "the threat is real") (citing In re MTBE Prods. Liab. Litig., 175 F. Supp. 2d 593, 607-08 (S.D.NY 2001)). To establish that "[its] threatened injuries are real," Plaintiff must prove that the alleged threatened injury is "imminent." Plainview Water Dist. v. Exxon Mobil Corp., No. 9975/01, slip op. at 4 (May 22, 2002); Plainview Water Dist. v. Exxon Mobil Corp., No. 9975/01, slip op. at 8-11 (Nov. 27, 2006);
Plainview Water Dist. v. Exxon Mobil Corp., No. 9975/01, slip op. at 1 (May 3, 2007). Both federal and state courts, including this Court, have defined "imminent" in the context of an alleged threat of future injury.
Plaintiff contends that a threat is "imminent" when it is present now, although the impact of the threat may not be felt until later. Meghrig v. KFC Western, Inc., 516 U.S. 479, 486 (1996), quoting Price v. United States Navy, 39 F.3d 1011, 1019 (9th Cir. 1994). While the risk of harm must be imminent, the harm itself need not be. United States v. Reilly Tar Chem. Corp., 546 F.Supp. 1100, 1109-10 (D. Minn. 1982). Furthermore, a threat is "imminent" if factors giving rise to it are present, even though the harm "may not eventuate or be fully manifest for a period of many years as may be the case with drinking water contamination. . . ." Conservation Chem. Co., 619 F.Supp at 194 (citations omitted). An imminent and impending threat requires only an identifiable risk of future harm, and does not require a showing that harm will occur immediately. See e.g., United States v. Price, 688 F.2d 204, 213 (3d Cir. 1982) ("imminence refers to the nature of the threat"); United States v. E.I. du Pont de Nemours Co., Inc., 341 F.Supp.2d 215, 247 (W.D.NY 2004)(" imminent' does not require proof that the harm will occur tomorrow'"); Zands v. Nelson, 797 F.Supp. 805, 809-810 (S.D.Cal. 1992) (pollution of property from release of gasoline held to establish "imminent hazard," even if anticipated injury had not occurred); Environmental Defense Fund, Inc. v. EPA, 465 F.2d 528, 535 (D.C. Cir. 1972)("An imminent hazard' may be declared at any point in a chain of events which may ultimately result in harm to the public.").
Defendant states that the U.S. Supreme Court has defined "imminent" to mean "certainly impending" and "a high degree of immediacy." Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 n. 2 (1992). Indeed, the immediacy of a threatened injury lies at the core of the imminence requirement. In re MTBE, 175 F. Supp. 2d at 607 (citing Animal Legal Def. Fund v. Espy, 23 F.3d 496, 500 (D.C. Cir. 1994) ("[t]he central question is the immediacy [of injury] for the underlying purpose of the imminence requirement is to ensure that the court in which suit is brought does not render an advisory opinion in a case in which no injury would have occurred at all."). Following the precedent set by the U.S. Supreme Court, the Second Circuit Court of Appeals, applying New York law, has defined "imminent" to mean "certainly impending" and "real and immediate." Lee v. Bd. of Governors, 118 F.3d 905, 912 (2d Cir. 1997) ("[W]ith respect to future injury, the [Supreme] Court has held that the prospect of such harm must be" certainly impending, '" and" real and immediate'"). See, also, In re MTBE, 175 F. Supp. 2d at 610. "A court must distinguish between a threat that may' pose an imminent endangerment and a threat that is certainly impending.'" Id. at 608 (quoting Citizens for a Better Env't v. Caterpillar, Inc., 30 F. Supp. 2d 1053, 1064 (C.D. Ill. 1998). The Appellate Division, Second Department, has defined "imminent" to mean "impending harm which constitutes a present, immediate threat i.e., a danger that is actual and at hand, not one that is speculative, abstract or remote." People v. Jing Xiong, 38 AD3d 926 (2d Dep't 2007) (quoting People v. Craig, 78 NY2d 616, 624 (1991). Likewise, this Court previously has defined "imminent" to mean "real," "immediate" and "certainly impending." Plainview Water Dist. v. Exxon Mobil Corp., No. 9975/01, slip op. at 4 (May 22, 2002); Plainview Water Dist. v. Exxon Mobil Corp., No. 9975/01, slip op. at 8-11 (Nov. 27, 2006).
Federal and state courts also have stated what does not constitute "imminent" for purposes of a claim for alleged threatened injury in the future. According to the U.S. Supreme Court, a threatened injury that might occur "some day" in the future without "any specification of whenthe some day will be" is not imminent. Lujan, 504 U.S. at 564; id. at 563 n. 2 (the concept of "imminence" "has been stretched beyond the breaking point when, as here, the plaintiff alleges only an injury at some indefinite future time, and the acts necessary to make the injury happen are at least partly within the plaintiff's own control."). The Second Circuit Court of Appeals has reached the same conclusion. Claims of threatened harm based on allegations of" some day' intentions do not support a finding of the actual or imminent' injury that [the Supreme Court's] cases require." Lee, 118 F.3d at 912 (citations omitted). Likewise, Judge Scheindlin declared that she would not grant relief on a future "threat" claim if "the alleged injury is merely an ingenious academic exercise in the conceivable.'" In re MTBE, 175 F. Supp. 2d at 609 (quoting Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 156 (4th Cir. 2000)). New York state courts also are in agreement. "Consequences which are contingent, speculative or merely possible are not properly considered in ascertaining injury, damages and appropriate remedy." Askey v. Occidental Chem. Corp., 102 AD2d 130, 136-37 (4th Dep't 1984); cf. Niagara Mohawk Power Corp. v. Ferranti-Packard Transformers, Inc., 201 AD2d 902, 904 (4th Dep't 1994). Ultimately, therefore, "imminence" is about proof of timing.
In determining whether an environmental threat is "imminent" several factors must be considered. The nature and the extent of the threat, the pollutant causing the threat, the speed at which the contaminant moves through the environment, the chemical composition of the pollutant causing the threat and the natural resource being threatened must be examined. The potentially catastrophic impact on our water supply cannot be compared to an event which may be limited in its scope. In addition, the fact that modeling is the primary method for predicting contamination and the real possibility of human error in acquiring data or manipulation of such data to make the necessary computations should be considered and therefore a more flexible approach with regard to defining "imminence" should be employed.
In the instant case, Plaintiff bore the burden of proving through non-speculative evidence not only that MTBE will actually impact its Plant 1 wells in the future, but that such impacts are "certainly impending," "actual and at hand" and "real and immediate" as required by New York law. Here, the Court finds that the plaintiff's models were based on speculation with little or no basis in reality.
It is undisputed that this action was commenced in 2001 over 6 years ago. Plaintiff has claimed since that time the contamination is imminent and that their wells are in danger of being contaminated. However, MTBE has never been detected at plaintiff's supply wells or the three "sentinel" monitoring wells that Plaintiff installed at the property in 2001. Rather, plaintiff's supply well 1-2 contains contaminants consistent with what was found at the Industrial Park. The contaminants have leached into the aquifer and appear to be moving towards the plaintiff's wells.
As a matter of law and upon the specific facts and circumstances presented at the trial including the passage of six years without the impact of MTBE at the Plant 1 wells, the Court finds that there is an absence of an imminent threat under controlling New York authorities. Moreover, Plaintiff's threshold threat claim here is identical to the usufructory right that plaintiff alleged was threatened, but which the U.S. District Court rejected as imminent in Knaust v. City of Kingston, 193 F. Supp. 2d 536 (N.D.NY 2002). In Knaust, plaintiff's were the owners of real property which adjoined the Kingston Business Park. Plaintiffs claimed that the underground lake on their property was being threatened by pollution from the Business Park's storm water management system. The plaintiffs claimed an interest in groundwater beneath their property. The groundwater was not actually contaminated. Plaintiffs alleged that the groundwater was imminently threatened by contamination from defendant's business park. The possibility of contamination had existed for several years.
Applying New York law, the district court rejected the plaintiffs' allegations of an "imminent threat" as speculative and dismissed the plaintiffs' claims:
There is absolutely no evidence in the record to support a finding that there is an "imminent" threat of contamination to the water . . . beneath Plaintiffs' property from the [Defendant's] storm water management system which would interfere with Plaintiffs' reasonable use of that water. The very fact that the storm water management system has been fully operational since December 1996 more than five years without any proof that at any point during that time there has been any contamination of the [water beneath Plaintiffs' property] militates against a finding that the threat of contamination is "imminent." At most Plaintiffs have raised the spectre of a threat.
Id. at 543.
It is undisputed that more than six (6) years have elapsed since the instant action was commenced without any MTBE impact on the Plant 1 wells. Therefore, they are not "imminently" threatened as a matter of law. Plaintiff also failed in its burden to prove when, if ever, the alleged threat to its Plant 1 wells would occur. Since plaintiff offered no credible evidence to establish when MTBE would impact the Plant 1 wells in the future, it cannot be said that the impact will occur within a period of time that could be deemed "certainly impending," "actual and at hand" or "real and immediate" as required by New York law. A claim that an "imminent" threat might occur "some day," without "any specification of whenthe some day will be," is precisely the kind of speculative injury that repeatedly has been rejected by the courts. Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992).
The Court finds that the evidence presented by plaintiff failed to substantiate its claim that the wells were imminently threatened by the MTBE contamination. It is axiomatic that computer models are only as reliable as the data inputed by the modeler. A model and the inputed data may be manipulated to a reach a particular result that the modeler is seeking and therein lies the fallibility of a model. The benefits derived from using a model are directly related to the accuracy of the data inputed. Mere speculation and selective use of certain data serves no purpose in achieving a forecast of reality. In order for a model to be valid, realistic data both past and future must be used. "Even in the best of circumstances, a model is only an estimate and the accuracy of the estimate depends to a considerable extent on the data selected for use in the computer model, the quality of that data and, of course, the skill of the modeler." City of Wichita v. Trs. of Apco Oil Corp. Liquidating Trust, 306 F. Supp. 2d 1040, 1108 (D. Kan. 2003). In order to be useful, the model must be created by an experienced modeler using realistic and supportable data. Outlaw v. Citibank, 35 AD3d 564, 565, 826 NYS2d 642, 644-45 (2d Dep't 2006)."An expert's opinion not based on facts is worthless." Caton v. Doug Urban Constr. Co., 65 NY2d 909, 911, 493 NYS2d 453, 454 (1985). Expert testimony must be based on "facts supported by the evidence" or on facts "fairly inferable from the evidence." Cassano v. Hagstrom, 5 NY2d 643, 646 (1959); Gilleo v. Elizabeth A. Horton Mem. Hosp., 196 AD2d 569, 570 (2d Dep't 1993); Cross v. Bd. of Educ., 49 AD2d 67, 70 (2d Dep't 1975); see also Romano v. Stanley, 90 NY2d 444, 451, 661 NYS2d 589, 592 (1997); Amatulli v. Delhi Constr. Corp., 77 NY2d 525, 533 n. 2, 569 NYS2d 337, 341 n. 2 (1991); Hambsch v. New York City Transit Auth., 63 NY2d 723, 725, 480 NYS2d 195, 197 (1984). In the instant matter, plaintiff's experts based their opinions and models on unrealistic assumptions. Holzmacher's use of the Jacob Bear equation is flawed. Additionally, Lewis' use of pumping scenarios and water usage are not supported by the facts. Granger's testimony as to future projects he anticipated would be constructed within the Water District is belied by the fact that several of those projects have already been abandoned.
Furthermore, Lewis' model does not become useful until specific scenarios occur. Here, plaintiff would have to increase the pumping at Plant 1 to levels that, from the testimony elicited at trial, have never been nor ever will be necessary. The results of Lewis's model would be the same in any given year. This Court asked Lewis when he would expect the contamination to occur commencing in various years. Lewis responded that it would occur in three to seven months from the time when all the factors are met.
Based upon the foregoing, the Court finds that plaintiff has failed in its burden to prove that there is an imminent threat to plaintiff's supply wells 1-1 and 1-2. Plaintiff's complaint is dismissed without costs.