McClellan Ecological See page Situation v. Cheney

No. S-86-475-RAR-JMF (E.D. Cal. April 30, 1990)

The court holds that an environmental group has failed to prove that groundwater containing contaminants from hazardous waste pits on an Air Force base are being discharged into the surface water in violation of the Federal Water Pollution Control Act. The court, in finding that the seepage of pollutants from the Air Force base's waste pits into groundwater does not and will not have a reasonably foreseeable and imminent effect on surface waters of the United States, holds that appellant environmental group did not carry its dual burdens of proof and persuasion.

[Previous opinions in this litigation are published at 17 ELR 20344, 19 ELR 20124, and 20 ELR 20871.]

Counsel are listed at 20 ELR 20871.

[20 ELR 20877]

Fitzgerald, J.:

Findings

This litigation dates from April 23, 1986, when McClellan Ecological Seepage Situation and others filed a complaint containing twenty-three claims against the Secretary of the Department of Defense.

United States District Judge Ramirez published an opinion and order December 9, 1986, granting the Secretary's motion to dismiss McClellan's claim for civil penalties, 655 F. Supp. 601 (E.D. Cal. 1986). Then on June 20, 1988, Judge Ramirez published a memorandum opinion and order granting summary judgment for the Secretary against a number of McClellan's claims for injunctive relief, 707 F. Supp. 1182; 1204, 1205 (E.D. Cal. 1988). Following the filing of an amended complaint by McClellan Ecological to add a claim for violations of state law under the Administrative Procedure Act, Judge Ramirez filed his memorandum opinion of August 31, 1989. Judge Ramirez in his 1989 memorandum opinion, found that McClellan's waste pits did not then discharge pollutants into the American River or into the Sacramento River and had not done so since at least 1968, which was four years prior to the effective date of § 301 of the Clean Water Act. However, Judge Ramirez concluded that McClellan Ecological should have the opportunity to demonstrate through expert testimony that any seepage of pollutants from McClellan's waste pits into ground water has a "reasonably foreseeable and temporally imminent effect on surface waters of the United States." Judge Ramirez marked out an additional issue upon which McClellan was to be given an opportunity to offer evidence. He afforded McClellan Ecological the opportunity of presenting evidence to carry the "ultimate burden of persuasion that ground water is being discharged to surface water creeks crossing McClellan Air Force Base and that this ground water contains contaminants from McClellan waste pits." The issues reserved for trial by Judge Ramirez went to McClellan's claims of Count 15 and a related part of Count 18 in the complaint.

Apart from the issues which he reserved for trial, Judge Ramirez apparently granted the government's motion for summary judgment against all of McClellan Ecological's other claims. Since the time of his last memorandum Judge Ramirez has resigned to enter private practice and the trial on the reserved issues was assigned to me. Evidence was taken on April 4 and concluded on April 6, 1990. Both Dr. Stephen W. Wheatcraft, who testified for McClellan Ecological and Dr. David Keith Todd, who testified for the federal defendants were qualified as expert witnesses.

I find:

Historically ground waters flowing below the City of Sacramento and its vicinity, including McClellan Air Force Base originated from sources east of Sacramento and moved in a westerly or southwesterly direction toward the Sacramento and American Rivers.

The natural direction of the ground water flow below McClellan Air Force Base and its vicinity began to show a significant change by 1955. Ground water flow was moving away from the Sacramento and American Rivers toward a cone of depression at a point where the surface level of ground water had been lowered by extraction of ground water for public or industrial use. Extraction of ground water now exceeds recharge by approximately 9000 acre feet a year.

A hydrological map prepared in 1989 reveals that the surface of the water in the cone of depression below McClellan Air Force Base has fallen below mean sea level to a depth of -30 feet. The bottom of the aquifer extends to a depth of 1500 feet and extraction of water is occurring from the upper level of the aquifer. The volume of ground water will permit extraction for present uses for many years.

The closing of many shallow water wells privately owned in the vicinity of McClellan Air Force Base is probably not due to contamination from the base, but is probably caused by local contamination related to widespread use of septic systems or septic tanks and by substances introduced into septic tanks to clear the tank.

It is improbable that contamination will bring about reduction of use or extraction of ground water in the vicinity of McClellan Air Force Base because the sources of contamination are from isolated areas. A remedial program to reduce contamination is now in place. A substantial amount of rechargeto the ground water comes from uncontaminated sources of the Sacramento and American Rivers. It is probable that contamination of ground water beneath, or in the vicinity of McClellan Air Force Base will decrease in future years.

Several wells extracting ground water beneath the McClellan Air Force Base or in close proximity to the Base for Base use, or for public or industry use have been shut in due to contamination of the ground water. It is much more serious and indeed more probable that long before pollutants from any of McClellan's waste sites reach the Sacramento or American Rivers, that spreading contamination in ground water would jeopardize the use of the ground water by McClellan Air Force Base and by the public in Sacramento and its vicinity unless adequate remedial measures are taken.

I conclude that the seepage of pollutants from McClellan's waste pits into ground water does not now, nor will it have a "reasonably foreseeable and temporally imminent effect on surface waters of the United States," caused through contamination carried by ground water into the Sacramento or American Rivers.

Dr. Wheatcraft testified, and I find:

That on a visit to McClellan Air Force Base he saw evidence of a flowing seep and evidence of other seeps along the banks of a creek crossing the Base. He also observed discharge pipes which penetrated the gunite lining at places along the banks of the creek. The purpose of the pipes is to relieve back pressure on the gunite lining from accumulating water.

[20 ELR 20878]

Dr. Wheatcraft testified, and I find:

That lens of relatively impermeable material underlie the ground surface at numerous places on McClellan Air Force Base. Water percolating through the soil will move horizontally when it meets a relatively impermeable layer of hardpan or clay and when more pemreable soil above the lens became saturated. This shallow perched water had been located in several areas on the base and may constitute a potential pathway to carry pollutants into surface water of the creeks.

Dr. Wheatcraft's reasons for supporting his belief that the surface waters of creeks traversing McClellan Air Force Base receive contaminants from waste sites include the following:

Lens of hardpan or clays, underlie the surface of the ground at numerous places on McClellan Air Force Base, the discovery of perched water at several locations and the proximity of a number of waste sites to creeks crossing McClellan Air Force Base.

I find:

That in a technical memorandum and report of August 29, 1986, (exhibit 20) commenting upon a series of reports prepared by McLaren Environment Engineering, the senior waste management engineer at the Base informed Colonel Lowell the Director of Environmental Management, McClellan Air Force Base concerning waste site 38 which was identified in the vicinity of Building 475 on the Base. According to the engineer's report:

Perched groundwater was encountered in four borings. This occurrence, whether from a broken distribution line from natural sources, suggest underlying impermeable strata which would accelerate lateral migration of contaminants away from the sources. If a distribution line has broken, the line should be remedied as fast as possible since it presents a threat to migration of contaminants which have been identified at this site.

The McLaren report of July, 1986, (exhibit 10) relating to site 38 disclosed that site 38 is an old reciprocating engine repair facility at Building 475. According to the report reportedly large quantities of carbon remover were used from the 1940's until mid 1960's. In addition Building 475 also contains a number of paint spray booths, tanks, pits and assorted sumps which may have contained or generated hazardous wastes.

McLaren Engineering completed 41 shallow auger profile borings in the vicinity of site 38 and found:

Perched groundwater was encountered at a depth of one foot below grade in Boring 38SAP28, and at depth of two feet in 38SAP06 and 38SAP29. A water sample was obtained from 38SAP29 and analyzed for VOC's. Chlorobenzene was detected at a concentration of 20 ppb. The soil sample boring 38SSB01 also encountered perched groundwater at a depth of five feet below grade and was subsequently terminated at a depth of 9.5 feet. A water sample was obtained from the zone of perched water and analyzed for VOC's. No volatile organic compounds were detected. The soil sample from 9.5 feet showed high concentrations of a variety of contaminants. The negative results of the water sample analysis from five feet may be explained by the fact that the boring, after encountering the perched water zone, penetrated a cemented soil layer. The soil sample was from below this cemented layer. The presence of water above the cemented layer may be due to a leaky underground water pipe, as is common around Building 475. 38SSB03 encountered a water main at a depth of five feet below grade and was discontinued.

(exhibit 10, page 40)

According to the McLaren report site 38 had been a surface site from which significant lateral migration of contaminants had occurred. Of the 5 sites in Area A, including site 38, only site 37 was found to contain buried waste. Building 473 is north of Building 475 and to the north of Building 473 is an open ditch. Perched water was found at depths of 1 and 2 feet in Borings 38SAP28, 38SAP06 and 38SAP29. However, at 38SAP25 north of Building 473 and the boring nearest to the ditch, no perched water was found. 38SAP06 is south of Building 473 and 38SAP29 and 38SAP28 are west of Building 475. Perched water was also found 5 feet below the surface at the boring at 38SSB01 and boring 38SSB03 encountered a water main at 5 feet below ground and was discontinued. 38SSB01 is west of Building 473.

Site 3 as described in Exhibit 4, figure 28 is said to be close to Magpie Creek at a point where the creek crosses McClellan Air Force Base. Wastes found buried in Site 3 were generally moist or slightly moist except when perched water was encountered at the north end of the site soil beneath the wastes were not saturated. In the Hydrogeologic Assessment Report of Area C McClellan Air Force Base, prepared by the staff of Environmental and Earth Sciences for Area C (Exhibit N) mention was made of the perched unconfined and confined water bodies in Area C.

There is some evidence of small, very limited, moist soil of perched ground water bodies below Area C (McLaren, 1986). These reported findings do not indicate a major perched water body or do they suggest much lateral extent to any of these small water bodies.

(exhibit N VIII-2)

According to Dr. Todd, and I find:

Extensive research has been done at McClellan Air Force Base to investigate the nature and extent of ground water supply and the extent of waste migration.

Hundreds of boreholes have been drilled to monitor the nature and extent of the waste migration. Many of the potential waste sites on McClellan AFB have been investigated, and hundreds of soil borings have been made. Wells have been drilled off-site, and wells to the north, west, and south of McClellan AFB have been inventoried. Periodic sampling of the water and sediments from these wells has been performed. Thousands of chemical determinations have been made to quantify the wastes in time and space.

These data and interpretation of the data are available in more than 130 reports prepared by the Radian Corporation, McLaren Environmental Engineering, Metcalf & Eddy Engineers, J.H. Kleinfelder and Associates, S.S. Papadopulos and Associates, Inc., Luhdorff and Scalmanini, Consulting Engineers, Engineering Science CHZM Hill, some U.S. Air Force reports, and some U.S. Geological Survey reports. These reports are on file at McClellan AFB, and copies have been furnished to appropriate state and Federal agencies.

(exhibit IV VIII-14)

Dr. Todd also testified, and I find:

That research indicates one source of contaminated perched water, but no evidence of lateral migration of contaminants into surface waters from waste sites on McClellan AFB into surface waters on the Base.

Although some of the contamination sites, or potentially contamination sites, are close by surface water channels on the Base, it is necessary to determine the depth at which contamination is found, since if the contamination is below the bottom of the channel it will not enter the surface waters in the channel.

Horizontal movement of contaminated material by water is probable because of underlying lens of clay or hardpan, but the depth size and the location of the lens, the amount of permeable material, and the amount of water required to saturate the permeable material are all factors which will affect the extent of lateral and vertical movement of the contamination.

I find:

That McClellan Ecological has failed to prove by persuasive evidence that perched ground water containing contaminants from waste sites on McClellan Air Force Base are presently discharged into the surface water of creeks crossing the Base.

I conclude that McClellan Ecological Seepage has failed to carry its burden of proof and failed to carry "the ultimate burden of persuasion that ground water is being discharged to surface water [creeks] and that such ground water contains contaminants from McClellan waste pits.