in 2017, The Rio Linda Elverta Community Water District and the Sacramento Suburban Water District filed claims in the US District Court for the Eastern District of California against the Federal Government and private sector defendants relating to hexavalent chromium (“Cr6”) pollution at the former McClellan Air Force Base.

(The private sector defendants include manufacturers and distributors of industrial products containing Cr6 which were sold to the federal government for use at the Base during active operations.)

These claims allege that when the base was open and operating that the United States Air Force used products containing hexavalent chromium, which then contaminated the groundwater aquifer making it unsafe for human consumption.

(See Rio Linda Elverta Cmty. Water Dist. v. United States, No. 2:17-CV-01349).

Last week, Judge Kimberly J. Mueller, Chief Judge for the United States District Court for the Eastern District of California, dismissed the water utilities’ federal and state law claims against the federal government and several of those chemical manufacturers.

The federal government began to remediate environmental conditions at the Base in 1979, and those efforts are continuing to this day. The water utilities acknowledge that such remediation efforts are taking place but insist that the government’s cleanup plan is not designed or intended to address the off-Base contamination, which is affecting individuals such as the water utilities and their customers.

In their respective complaints, the water utilities accuse the federal government of negligence, nuisance, trespass, and utility tampering in violation of California Civil Code § 1882, in addition to seeking cost recovery under the “SuperFund” act, and an imminent and substantial endangerment finding under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(B). As to the private sector defendants, the water utilities allege negligence, nuisance, trespass, strict liability based upon design defects and failure to warn, and utility tampering in violation of California Civil Code § 1882.

The parties do not dispute that the federal government is conducting both remedial and removal actions at the Base. However, Judge Mueller concluded that the water utilities’ claims against the federal government target its removal action activity only.

Judge Mueller also determined that the water utilities’ claims were challenges to the § 104 cleanups because they seek to improve upon the actions that the federal government is already taking at the Base pursuant to that provision. Thus, Judge Mueller dismissed the water utilities’ RCRA claim for lack of subject matter jurisdiction.

Next, Judge Mueller analyzed the water utilities’ state law claims against the federal government and found that they were barred by sovereign immunity. Under the doctrine of sovereign immunity, the federal government, as sovereign, must consent to suit. The Federal Tort Claims Act states that “the United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner, and to the same extent as a private individual under like circumstances . . .”

However, under the discretionary function exception, the federal government “may not be liable for acts grounded in public policy considerations that involve an element of judgment.”

The federal government successfully argued that the utility tampering claim did not come within the scope of the FTCA waiver because it is a strict liability offense. The federal government also argued that negligence, nuisance, and trespass all come within the discretionary function exception in the context of the Base cleanup. Judge Mueller decided that the discretionary function exception applied to the water utilities’ remaining state law claims against the federal government because those claims were challenging the design of the Base’s waste disposal system, which was not governed by a mandatory statute, policy, or regulation, and which implicated significant political policy analysis.

Judge Mueller determined that the water utilities failed to prove the nuisance, trespass, and utility tampering claims because they were not supported by sufficient factual allegations that the private sector defendants engaged in conduct comprising those claims. Judge Mueller dismissed those claims without prejudice, giving the water utilities the opportunity to plead additional facts to support the claims.

The federal government also stated that the water utilities SuperFund cost recovery claim should be dismissed because they failed to plead that the costs they incurred to reduce the levels of Cr6 in their wells were necessary or that any of the requirements for consistency with the National Contingency Plan were met in that process.

Judge Mueller declined to dismiss the water utility’s SuperFund cost recovery claim because the water utilities “sufficiently alleged their costs were necessary when it was determined that the concentration of Cr6 in their wells posed a health hazard if left untreated.”

When asked for context, Tim Shaw, General Manager of the Rio Linda Elverta Community Water District stated “The District continues to be engaged in litigation. As such, the District does not comment on pending litigation.”

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