Opinion
Case No. 2:97-CV-0912C.
April 24, 2002
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiffs are the owners of real property in Tooele County, Utah. The real property is located near the Tooele Army Depot ("TEAD"), a United States military installation. Plaintiffs have brought suit against Defendant United States claiming that during operations at the TEAD, the United States (the actual actor was the United States Army) discharged trichloroethylene ("TCE") into the environment which migrated to and contaminated a well on Plaintiff's property. In their complaint, Plaintiffs asserted eight causes of action. Before trial, the court dismissed all claims except for the state law claims of continuing tort. Trial on this sole issue was held before the court in May 2001.
The narrowness of the issue at trial was the result of two pretrial orders of the court. In an order dated July 1, 1999, the court held that the only claims not barred by the two-year statute of limitations of the Federal Tort Claims Act ("FTCA") were the continuing tort claims. The court stated that: "[t]o the extent that the Bolinders have alleged that the migration of TCE continued after November 26, 1994 [the Bolinders filed their official claim with the United States on November 26, 1996], such claims are not barred by the two-year statute of limitations of the FTCA." (Order of July 1, 1999 at 14). In a later order, the court clarified that it was unnecessary for Plaintiffs to prove that the United States actually discharged TCE into the groundwater after November 26, 1994, and that Plaintiffs could recover for damages caused by the migration of TCE onto their property occurring after November 26, 1994. (Order of December 7, 1999, at 9). However, to recover, Plaintiffs were required to show that the discharge of TCE which caused them damage was "wrongful, based on the applicable standards of conduct at the time." (Id.) Therefore, the period of time for which Plaintiffs can recover is November 26, 1994, until November 26, 1996.
Before and during trial, there was little or no dispute regarding two facts. First, the well on Plaintiffs' property has been contaminated by TCE. Second, discharges from the TEAD are the source of the TCE contamination in Plaintiffs' well. At trial, the remaining question to be resolved was whether the United States' discharge of TCE was negligent under the relevant standards of care at the time of discharge. To determine this question, then, the court must determine: (1) what area or areas of the TEAD were the sources of the TCE that contaminated the Bolinder well; (2) when did the discharges of TCE from these sources occur; and (3) what was the standard of care regarding the discharge of TCE during the relevant time period.
FINDINGS OF FACT
A. Background
Plaintiffs Garry Bolinder and Bruce Bolinder are the owners of Plaintiff Bolinder Real Estate (collectively referred to as "Bolinders"). The Bolinders owned 148.56 acres of real property located in Tooele County, Utah. This property is known as the "Rocky Ridge Property" (at times during this case, the property was alternatively described as the "Bolinder Property"). The Bolinders owned and operated a ready-mix concrete, asphalt paving and construction contracting company on the Rocky Ridge Property. The Rocky Ridge Property is located across a highway from the TEAD.
The TEAD is located approximately 35 miles southwest of Salt Lake City, Utah. It has operated as an active Army base since the early 1940's. The TEAD was originally constructed in 1942 as the Tooele Ordnance Depot and was a World War II Ordnance Corps installation. After World War II, the TEAD was used mainly to stockpile supplies and equipment. During the Korean War, the TEAD's mission changed from primarily a storage base to a manufacturing installation for producing, rebuilding and repairing military equipment. After the Korean War, the demilitarization of obsolete ammunition and bombs was carried out at the TEAD. During the Vietnam War, work at the TEAD included the supply and maintenance of military equipment and the repair, reconditioning, overhauling, and testing of automotive equipment, combat vehicles, construction equipment, missile systems, armament, and rail equipment. Into the mid 1990's, the activities at the TEAD centered on the storage, repair, and overhaul of munitions, combat vehicles, and other materiel. Industrial solvents, including TCE, were used at the TEAD.
In 1980, the Environmental Protection Agency listed TCE as a hazardous waste. Accordingly, since 1980, TCE has been continuously regulated under state and federal environmental laws. However, before that time, TCE was not generally recognized as a hazardous material and was widely used as a solvent (as well as a decaffeinating agent used in coffee and an additive to spices).
In 1983, the Army began to investigate elevated chemical concentrations in groundwater associated with waste discharges to a former Industrial Waste Lagoon ("IWL") and associated unlined wastewater ditches at the TEAD. The investigation showed that the main contaminant detected in groundwater was TCE. The initial environmental assessment included the installation of a network of groundwater monitoring wells throughout the TEAD. From its investigation, the Army determined that wastewater discharges to the wastewater ditches and the IWL resulted in a plume of contamination located beneath and hydraulically downgradient from these sources.
The "gradient" refers to the direction of flow of groundwater. Through analogy to a stream or river, "downgradient" is downstream and "upgradient" is upstream.
In 1985, the TEAD and the State of Utah entered into a Consent Decree, which was approved by the Honorable J. Thomas Greene on January 13, 1986. Pursuant to the Consent Decree, the Army was permitted to continue to discharge to the IWL until November 8, 1988, so long as it abided by the terms of the Consent Decree and applicable regulations. The terms of the Consent Decree required the Army to prepare a Corrective Action Plan outlining the steps it would take to remediate the contaminated groundwater. The terms of the Corrective Action Plan were embodied in a Corrective Action Permit signed by the Utah Department of Environmental Quality and the TEAD in 1991. In 1993, the TEAD began the remediation of the contaminated groundwater associated with the IWL.
The Corrective Action Permit required that the Army conduct corrective action investigations at a number of Solid Waste Management Units ("SWMUs") at the TEAD. If, during the course of a corrective action investigation, a previously unidentified SWMU was found, the Army was required to notify the State of Utah in writing.
In June 1986, the Utah Bureau of Drinking Water/Sanitation took a sample of the Bolinders' well water for analysis. In a letter to the Bolinders dated June 23, 1986, David Hansen, an environmental scientist for the State of Utah, wrote:
As you know, we are conducting a study of ground-water contamination of outside wells near Tooele Army Depot for possible contamination of Trichloroethylene (TCE). As per our telephone conversation, high levels of TCE contamination were indicated in your samples. . . . We advise you that TCE is a possible carcinogen and recommend that culinary use be restricted because of the high levels of TCE contamination. (110-120 parts/billion).
(Uncontroverted Fact 16, Pretrial Order).
After learning from the State of Utah about the TCE contamination, Dorothy Bolinder contacted personnel at the TEAD on numerous occasions to discuss whether operations at the TEAD were a possible source of the contamination. All those to whom she spoke adamantly denied that the TCE discovered on the Bolinder property came from the TEAD.
William Fillmore, vice-president of Bolinder Companies, Inc., sent a letter to the industrial risk manager at the TEAD. In the letter, Mr. Fillmore wrote: "We have encountered elevated levels of TCE in the water from the well [on the Bolinder property]. . . . [T]he TCE in the water must have come from somewhere else. The only other source of TCE contamination in the groundwater of which we are aware is the TEAD." (Ex. 96, Letter of Bill Fillmore to Harold Oliver). (The well referred to by Mr. Fillmore is located immediately east of, and across the highway from, the TEAD). The Army continued to deny that the TEAD was the source of the contamination. And, even when provided a copy of a report prepared by an environmental consultant, Adrain Brown, in which Mr. Brown concluded that the TEAD was the source of the TCE, the Army refused to acknowledge its role in the contamination of the Bolinder well.
Finally, sometime in 1995, after making additional investigations, including the installation of monitoring wells located at the TEAD boundary to the northeast of the IWL, the Army concluded that there were two distinct plumes of TCE, a "main plume" emanating from the IWL and its ditches and a "northeastern boundary plume," which impacted wells on the northeastern boundary of the TEAD and the Bolinder well.
B. The Source of the TCE in the Bolinder Well
In 1996 and 1997, the Army conducted an investigation into the northeastern boundary plume. This investigation consisted of review of aerial photographs, a geophysical survey, the installation and sampling of additional monitoring wells, and soil gas sampling. The investigation revealed a band of TCE-contaminated groundwater which extended from one of the monitoring wells, well C-10, traveling in a southerly direction to the eastern end of the industrial area at the TEAD. Soil gas sampling results indicated two possible sources of the TCE that made up the northeastern boundary plume. One of the possible sources was located in the Defense Reutilization and Marketing Office ("DRMO") yard while the other possible source was located between Buildings 677 and 679 in the industrial area. When the Army investigated the area between Buildings 677 and 679, it found an oil/water separator and french drain system (collectively referred to as "oil water separator").
The Army also re-evaluated the sources for the main plume. And, as required by the conditions of the Corrective Action Permit, the Army designated a new SWMU, SWMU 58. SWMU 58 consisted of the northeastern boundary plume, the sources of the northeastern boundary plume, and newly-identified sources of the main plume.
At trial, there was little dispute that a primary source of TCE in the northeastern boundary plume was the oil/water separator. Both parties' experts agreed on that fact. Opinions differed, however, on whether other areas of the TEAD contributed to the TCE contamination found in the Bolinder well. One of the main disputes centered on the question of whether the main plume and the northeastern boundary plume remained separate and distinct, as Defendant maintained, or whether they joined together at some point, which was Plaintiffs' position. After carefully considering the evidence, the court concludes that Defendant is correct: the two plumes remained separate and distinct and the source of the contamination to the Bolinder well was the northeast boundary plume. The following evidence was persuasive on this issue.
A hydrolgeologist, Gordon D. Bennett, testified as an expert witness for Defendant. According to Mr. Bennett, the main plume and the northeastern boundary plume are distinct and the sources of the main plume did not contribute to the TCE contamination at the Bolinder well. Mr. Bennett explained the basis for his opinion:
Well, according to the water level contours, I see no indication of flow in that direction, and the chemistry does not support that interpretation. There's an area between the two plumes where concentrations are extremely low, and you would think that there would be an area, a pathway if you like, along which concentrations were high if there were any significant communication.
(May 11 Tr. at 180).
Mr. Bennett further explained:
It's [the IWL, one of the major sources of the main plume] at a lower elevation than the [Bolinder well] — The water table beneath the waste lagoon is at a lower elevation than the water table at the Bolinder well, and the ground water could not flow from the waste lagoon to the Bolinder well.
(Id. at 181).
Plaintiffs' expert, Mr. Brown, testified that TCE from sources making up the main plume could be transported to the Bolinder well because the groundwater carrying it was diverted around a bedrock block that is located in the center of the TEAD. This theory was not convincing for several reasons. First, the bedrock block was permeable due to fractures in the bedrock. Because the bedrock was permeable, the groundwater did not need to go around the bedrock block; rather, it could simply pass through it. Second, water level measurements in the bedrock indicated groundwater movement along the direction of the fractures. Third, chemical data supported a finding of a northwest direction of flow through the bedrock block.
Remy Hennett, an expert geochemist who testified for Defendant, agreed with Mr. Bennett's opinions, that is, that the primary source of contamination in the Bolinder well came from the oil/water separator outside of building 679 (with the possibility that the DRMO area also contributed to the contamination), and TCE from the main plume did not contaminate the Bolinder well. Dr. Hennett's opinions came as a result of what appeared to the court to be thorough and meticulous investigation and study of the chemical data taken from the relevant areas.
Dr. Hennett testified that the two plumes were clearly distinct from each other and did not commingle. Dr. Hennett based his opinion not only on the different geographical locations, but also because of what Dr. Hennett called the "geochemical signature" of each plume. (Id. at 258). The geochemical signature refers to the mix of chemical constituents found in each plume. And the mix in the main plume is not the same as the mix in the northeastern boundary plume. Significantly, neither 1,1,1 trichloroethane ("TCA") or its degradation byproducts are present in the groundwater of the northeastern boundary plume or the Bolinder well, while both have been detected throughout the main plume.
When TCA degrades, it breaks down to 1,1 dichlorethene or ("DCE") 1,1 dichlorethane ("DCA"). Neither DCE or DCA was detected in the northeastern boundary plume. This finding lent further weight to the conclusion that there was no TCA in the northeastern boundary plume.
Some government reports have suggested that the existence of low concentrations of TCE between the two plumes indicate a possibility that there was, in fact, some commingling of the two plumes. Yet, this evidence is not particularly persuasive. It is more likely that the low levels of TCE found between the two plumes originated from various diffuse sources that are located between the predominant sources of TCE found in the main plume and the northeastern boundary plume.
Plaintiffs contend that there are two other areas that contribute to the TCE contamination in the northeastern boundary plume, and, therefore, are sources of the contamination of the Bolinder property. These alleged sources are building 691 and the missile test fire area. However, the evidence at trial did not support Plaintiffs' contention. Information taken from soil gas surveys of the area of building 691 showed TCE in soils at depths between three and ten feet. A much higher level of tetrachloroethene (otherwise known as perchloroethene ("PCE")) was also found in the survey. One would expect the PCE to migrate along with TCE, but no PCE has been detected in the Bolinder well. Accordingly, it is unlikely that TCE from this location has entered the northeastern boundary plume and contaminated the Bolinder property.
As regards the missile test fire area, Plaintiffs' evidence was not convincing. Moreover, Dr. Hennett testified that based on his review of the available data, there was no basis to conclude that this site was a source of the TCE in the northeastern boundary plume. (The Regulator from the State of Utah, Helge Gabert testified that based on the current available data, building 691 was ranked last by the State of Utah as a potential source of the TCE found in the northeastern boundary plume).
In sum, the court concludes that the northeastern boundary plume is the source of the TCE contamination found in the Bolinder well, that the TCE in the northeastern boundary plume came primarily from the oil/water separator adjacent to Building 679, and that Plaintiffs have not shown that there were other sources of the TCE in the northeastern boundary plume
C. The Period of Time when the Discharges from the Oil/Water Separator Occurred
The next question focuses on the timing of the discharges of TCE from the oil/water separator. Because the evidence showed that it would take at least 23 years for TCE contamination to migrate through the groundwater beneath the oil/water separator to the Bolinder well, the discharge that caused the contamination that was detected in the Bolinder well in 1986 had to occur before 1963. And, the TCE contamination that migrated to the Bolinder's property between November 26, 1994, and November 26, 1996, had to be discharged before 1974. Any TCE discharges after 1974 would not have reached Plaintiffs' property until 1997 and cannot be part of Plaintiffs' continuing tort claims.
After a TCE discharge to the environment, it will take time for TCE to (1) migrate through the soil to the groundwater and (2) migrate from the groundwater beneath the location of the discharge to the groundwater underlying Plaintiffs' property. Gordon Bennett determined from his calculations that it would take at least 23 years for contaminants to migrate through groundwater from a point beneath the oil/water separator to the Bolinder well. Mr. Bennett did not consider, for various reasons, the time required for the TCE to migrate from the shallow soil to the water table. Nor did Mr. Bennett take into account the slow velocities of groundwater movement in the vicinity of the Bolinder well. Finally, the calculation did not account for the effect of water supply on well number two, which also would have slowed the flow of the TCE to the Bolinder well. Accordingly, the actual time it would take for TCE to move from the oil/water separator to the Bolinder property would be longer than 23 years.
The DRMO yard is farther from the Bolinder well than the oil/water separator that is adjacent to building 679. Therefore, if the DRMO yard is a source of some of the TCE contamination on the Bolinder well, the TCE discharges at that location must have occurred more than twenty-three years before the TCE reached the Bolinder's property.
The absence of TCA in the northeastern boundary plume supports a conclusion that the plume originated before 1980. Industry and the Army phased out the use of TCE before 1980 although from the 1940's to the 1970's, industry in general and the Army in particular used TCE as the primary solvent for degreasing parts and equipment. However, in the late 1970's and early 1980's, industry switched from TCE to TCA for degreasing. During the same time period, the Army also switched to TCA as the main solvent used for degreasing, although it continued to use TCE sporadically in small amounts at the TEAD after 1980. This history is supported by the testimony of Davis Ford, an environmental engineer who testified as an expert witness for Defendant. Dr. Ford testified extensively, and convincingly, that along with other military bases and private industry, the TEAD began "phasing out" TCE, and using TCA, sometime in the 1970's to the early 1980's. (May 11 Tr. at 99). David Woodworth, an environmental engineer at the TEAD at various periods beginning in 1980, testified that "sometime before 1980 TCA was used to phase out the TCE." (May 9 Tr. at 81).
In addition, there was other credible evidence indicating that the TCE discharges to the oil/water separator at the TEAD occurred before 1960. Historic records regarding the use of building 679 showed that TCE discharges to the oil/water separator ended before 1960. Witness testimony corroborated this. Rodger Olson, as a result of his job responsibilities at the TEAD, "was in and out of that building [building 679] routinely, and of course, as chief of general supply, I was responsible for all the supply activity that took place within that area." (May 14 Tr. at 104). Mr. Olson testified that by the time he began working at the TEAD, in 1963, Building 679 was used solely as a warehouse for dry storage and that no industrial operations took place there from 1963 to 1989. As to the DRMO yard, Gerald Elton testified that when he began working at the TEAD, in the 1960's, the DRMO yard was used for drum storage.
The absence of TCA in the northeastern boundary plume confirmed that the plume must have originated before 1980. In contrast, there is TCA in the main plume, which shows that solvent discharges to that plume occurred after 1980. This geochemical evidence is consistent with the documentary evidence and witness testimony that the IWL, a source of contamination in the main plume, was used for industrial waste discharges after 1980.
The persistence of TCE contamination and continued TCE releases to the groundwater for many years after a discharge is consistent with scientific principles and the experience at other contaminated sites. In fact, TCE can remain in soils near the site of a discharge for decades after a discharge occurs. After a TCE discharge, a certain percentage of TCE will become trapped in the soil and will serve as a continuing reservoir for TCE releases to the groundwater. This occurs because as water runs through soil it will gradually dissolve the TCE retained in the soil and transport it to the groundwater. Persistent TCE retention in the soil and release to the groundwater is a common phenomenon at many hazardous waste sites. This phenomenon explains how a TCE discharge that took place decades ago can continue to be a source of ongoing TCE releases to the groundwater.
D. The Standard of Care
The final factual questions for resolution focus on the standard of care for the handling and disposal of TCE during the relevant period of time and whether the practices at the TEAD violated that standard. As discussed above, the court has found that the TCE that migrated to Plaintiffs' property in the mid 1990's was discharged at least twenty-three years earlier, and most likely before 1960. Therefore, the relevant standards of care for TCE disposal are those standards of care that existed between 1942, when the TEAD was established, and 1974, the time of the last potential TCE discharge that could have migrated to Plaintiffs' property in the mid-1990's.
The testimony of Davis Ford was very instructive on these issues. According to Dr. Ford, who had been working in the area of environmental engineering since 1959, waste management practices related to the disposal of chemicals such as TCE did not begin to change until the passage of certain environmental statutes, which occurred in the late 1970's and early 1980's. During the 1930's and 1940's, TCE was widely used as a solvent in the United States because it was not as flammable as other solvents. TCE was the so-called "safety solvent." (May 11 Tr. at 97). TCE was used many other ways, including as an anesthesia, a decaffeinating agent, an additive to spices and an agent used in septic tank cleaning.
It was not until the late 1970's and the early 1980's that TCE was discovered in the groundwater. During that same period of time, methods were perfected for detecting TCE in the environment and analyzing the amounts. Only then did the EPA, and state regulatory agencies, begin focusing on TCE as a possible hazard to the environment.
Because there was generally no recognition that TCE posed a danger to the environment until the mid 1970's, it was standard practice in the military and in private industry to dispose of TCE and other solvents through the use of ponds, lagoons, conveyance ditches and other methods. And, the practices of the TEAD, including the use of an oil/water separator and the storage of drums and containers at the DRMO, were no different than those of other military installations or of private industry.
The testimony of Plaintiffs' expert, Dr. Mark Stelljes, regarding knowledge of the toxic properties of TCE before the mid 1970's, was not relevant to the question of the standard of care governing disposal of TCE. While there was growing recognition that TCE was hazardous at certain concentrations in an occupational setting in the 1950's through 1970's, this did not change the environmental engineering practices of TCE waste disposal. Rather, changes in waste disposal practices did not occur until there was recognition that the waste disposal practices for a particular chemical could lead to groundwater contamination in concentrations sufficient to cause health hazards.
CONCLUSIONS OF LAW
Jurisdiction is proper in this case under 28 U.S.C. § 1346(b)(1). Venue is not disputed.
The issues in this case were substantially narrowed by two of the court's pretrial orders. In those orders, the court held that the statute of limitations of the Federal Tort Claims Act, 28 U.S.C. § 2401(b), barred all of Plaintiffs' claims except for their continuing tort claims under Utah law. (Order of July 1, 1999 at 13-14; See also Order of December 7, 1999 at 2, n. 1). To establish their continuing tort claims, it was Plaintiffs' burden to prove that Defendant's negligence caused the continuing migration of contaminants onto Plaintiffs' property between November 26, 1994, and November 26, 1996. And, in order to prove that Defendant's conduct was negligent, it was Plaintiffs' burden to establish that Defendant violated the relevant standard of care at the time.
The court's Findings of Fact lead to the conclusion that Defendant was not negligent in the discharge of TCE that led to contamination of Plaintiffs' property in the mid 1990's, because the discharges did not violate any relevant standards of care at the time those discharges occurred. In the Findings of Fact, the court has found that: (1) any TCE discharges that ultimately migrated to Plaintiffs' property in the mid 1990's occurred at sources for the northeastern boundary plume at least twenty-three years before the TCE reached Plaintiffs' property and probably before 1960; (2) the primary source for the northeastern boundary plume is the oil/water separator outside of building 679; and (3) the DRMO yard is another potential source of TCE contamination in the northeastern boundary plume. For purposes of determining whether the government was negligent, the relevant question is whether any TCE discharges at those two locations violated relevant standards of care at the time of those discharges. Because these discharges occurred at least before 1974, the relevant standards of care are the standards of care before 1974.
The court has also found that Defendant's handling and disposal of TCE waste were consistent with waste disposal practices followed by the military and private industry during this period before 1974. Other courts have also recognized that neither industry nor the military were aware of the potential for TCE to contaminate groundwater in hazardous quantities until after the late 1970's and early 1980's. See Western Greenhouses v. United States, 878 F. Supp. 917, 927 (N.D. Texas 1995) (given the state of knowledge and the standard of industry practice during the period between the 1940's and the 1970's, Air Force employees had no reason to know that their TCE waste disposal activities could lead to plaintiffs' damages); O'Neal v. Department of Army, 852 F. Supp. 327, 330-32, 334 (M.D.Pa. 1994) (from 1960 to 1983, the Army degreased parts with TCE at an aircraft maintenance facility at the New Cumberland Army Depot; the court found that the Army's use of TCE and disposal of the chemical through a drainage system that emptied into a marsh complied with industry practices at the time); Smith v. Hughes Aircraft Co., 22 F.3d 1432, 1440 (9th Cir. 1994) (the court could not conclude that a company knew that TCE was likely to result in harm given that: (1) TCE was commonly used as an anesthetic and disinfectant; (2) TCE was used to extract hops, decaffeinate coffee, and prepare fish meal; (3) the Food and Drug Administration did not propose banning TCE as a food additive until 1977; and (4) the Environmental Protection Agency did not propose a non-binding standard for TCE in drinking water until 1979); United States v. Hooker Chemicals Plastics Corp., 850 F. Supp. 993, 1048-64 (W.D.N.Y. 1994) (discussing evolving standards for solid waste disposal — including volatile organic chemicals like TCE — and recognizing disposal methods in the 1950's included pouring chemicals directly on dry sand because of lack of knowledge that water-soluble chemicals would eventually migrate through soil).
Finally, a negligent failure to remediate contamination cannot be a basis for tort liability against Defendant because efforts to remediate contaminated government sites are protected by the discretionary function exception to the FTCA waiver of sovereign immunity. See Daigle v. Shell Oil Co., 972 F.2d 1527, 1541-42 (10th Cir. 1992); Lockett v. United States, 938 F.2d 630, 639 (6th Cir. 1991); Wells v. United States, 851 F.2d 1471, 1476-77 (D.C. Cir. 1988), cert. denied, 488 U.S. 1029 (1989); United States Fidelity Guar. Co. v. United States, 837 F.2d 116, 122 (3rd Cir.), cert. denied, 487 U.S. 1235 (1988).
For the above stated reasons, Plaintiffs have not met their burden of proof under either Utah law or the FTCA. Judgment on all claims will be entered against Plaintiffs and in favor of Defendant.
IT IS SO ORDERED.