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O'NEAL v. DEPARTMENT OF THE ARMY OF THE UNITED STA

May 16, 1994

ROBERT C. O'NEAL, Individually and as Representative of the Estate of Florence M. O'Neal, Decedent, et al., Plaintiffs
v.
DEPARTMENT OF THE ARMY OF THE UNITED STATES OF AMERICA, and THE UNITED STATES OF AMERICA, Defendants



The opinion of the court was delivered by: WILLIAM W. CALDWELL

 FINDINGS OF FACT

 Factual Background

 1. Test Plaintiffs, Robert O'Neal, Mary Jean Hamacher, Vivian O'Donnell, and Christina Reidel currently live or formerly lived in homes in a development known as Westfield Terrace, which is located in York County, Pennsylvania, adjacent to the former New Cumberland Army Depot ("NCAD," now known as Defense Distribution Region East "DDRE"). *fn1" Appendix A shows the locations of the homes and NCAD.

 2. Each of the four homes had private wells and the residents of each home used well water for virtually all activities, including cooking, drinking, bathing, laundry, gardening, and car-washing. See Testimony of Mary Jean Hamacher (hereafter "Hamacher Testimony"); Testimony of Vivian O'Donnell (hereafter "V. O'Donnell Testimony"); Testimony of Robert O'Neal (hereafter "O'Neal Testimony"); Testimony of Christina Riedel (hereafter "C. Riedel Testimony").

 3. The United States Army began construction of what came to be called NCAD in 1917. From approximately 1960 to 1983, the NCAD served as an aircraft maintenance facility, primarily for U.S. Army helicopters. Report of the U.S. Army Toxic and Hazardous Materials Agency (hereafter "USATHAMA Report") at 1-7, 1-8.

 4. The part of the NCAD at issue in this case was known as the Aircraft Maintenance Area (hereafter "AMA"). It covered 127 acres and included Warehouses 7, 8, 9, and 10 and Hangars 87, 88, and 92. USATHAMA Report at 1-9. See Appendix A.

 5. Operations in Warehouse 7 including cleaning and plating of aircraft parts. Workers removed grease from parts using a vapor degreaser that utilized trichloroethylene (hereafter "TCE"). Any spills were collected by a floor drain. USATHAMA Report at 1-9; Testimony of Larry Neidlinger (hereafter "Neidlinger Testimony").

 6. Plating operations in Warehouse 7 required the use of a chromic acid plating solution. Spills from this operation were collected by floor drains. USATHAMA Report at 1-11; Neidlinger Testimony.

 7. Workers in Hangar 87 cleaned aircraft frames, often stripping all of the paint from the metal. Various chemicals were used, including aromatics, ketone, chlorinated carbons, and heterocyclics. USATHAMA Report at 1-11.

 8. Workers in Hangar 92 primarily painted aircraft frames. The paints contained zinc, chromium, and lead. USATHAMA Report at 1-12.

 9. Until 1974, the drains in Warehouse 7 were connected to a series of terra cotta pipes that lead to a corrugated metal pipe. That pipe, in turn, lead to an open channel that emptied into the Marsh Run Pond south of the AMA. Testimony of Peter Robelen (hereafter "Robelen Testimony"). See Appendix A.

 10. In 1974, the drainage system was connected to a treatment plant and no longer emptied into the open channel. Robelen Testimony.

 11. In 1985, workers demolishing Warehouse 7 found a chromium sump under the former plating shop. The sump collected spillage and overflow from the plating tank. When found, it was "severely degraded" by the acidic plating solutions it had once collected. USATHAMA Report at 1-12.

 12. Excavation personnel had the sump removed and tested a yellow-orange liquid that had leached from it, discovering the liquid to contain high concentrations of chromium. NCAD officials notified the Pennsylvania Department of Environmental Resources (hereafter "PADER") and the United States Environmental Protection Agency (hereafter "EPA"). USATHAMA Report at 1-13.

 13. Four test pits were dug in the ground surrounding the sump. Testing from those pits indicated that chromium had migrated through the ground. With PADER approval, the Army removed much of the soil surrounding the sump and disposed of it. USATHAMA Report at 1-13.

 14. In late 1986, the Army tested the groundwater around the site by use of monitoring wells. Those wells revealed that the groundwater contained levels of chromium ranging from less than .02 milligrams per liter to 41.4 milligrams per liter. USATHAMA Report at 1-13.

 15. In July, 1988, six more groundwater monitoring wells were installed around the site and testing of water from four of them showed levels of TCE from 184 to 488 parts per billion (hereafter "ppb"). Analysts did not test for the presence of chromium at that time. USATHAMA Report at 1-15.

 16. Upon receiving those test results, the Army canvassed the neighborhood surrounding NCAD, and discovered that the four homes in which the test Plaintiffs lived were the only ones with private wells. The remaining homes received municipal water. Neidlinger Testimony. 17. The Army and PADER tested the wells and determined the following chemicals to be present at the following levels (where more than one number is noted, more than one test was performed): n2 O'Neal Well TCE 750, 660, 11 ppb Chromium 240 ppb Barium 40,000 ppb 1,2 Dichloroethane 3.8 ppb Riedel Well TCE 1,100, 1,350 ppb Chromium 234 ppb Barium 32,000 ppb Arsenic 3.2 ppb 1,1 Dichloroethene 1 ppb 1,2 Dichloroethane 8.5 ppb O'Donnell Well TCE 860, 1,000 ppb Chromium 195 ppb Barium 30,000 ppb 1,2 Dichloroethane 6.2 ppb 1,1,1 Trichloroethane 2.3 ppb Hamacher Well TCE 5.7, 9.2 ppb Chromium 221 ppb 1,1 Dichloroethene 13, 16 ppb 1,1 Dichloroethane 1.1 ppb 1,1,1 Trichloroethane 10, 12 ppb

 18. Immediately upon detecting contamination of the private wells, the Army placed notices on the doors of the four (O'Neal, Reidel, O'Donnell, and Hamacher) homes informing the residents not to use their well water. Neidlinger Testimony; Hamacher Testimony; V. O'Donnell Testimony; O'Neal Testimony.

 19. The Army immediately provided bottled water to the residents and, within two months, paid for the four residences to be connected to the municipal water main. Since the time of the discovery, none of the Plaintiffs have used water from the wells. Undisputed; Hamacher Testimony.

 20. Test Plaintiff Mary Jean Hamacher felt "concern" at hearing of the contamination. Since that time, she has occasionally lost sleep and wondered what effect the contamination might have on her and her family. However, she has not sought counseling for emotional distress and she has worried less about health effects from the contamination since her blood was tested for TCE in 1989 and found to be negative. Hamacher Testimony.

 21. Test Plaintiff Vivian O'Donnell was "very upset" when she learned of the contamination. She worries whenever any member of her family becomes ill that there is some connection to the contaminated well water. She is often short-tempered and attributes that to the water situation. Additionally, she has lost sleep and worries about what effect the contamination will have on her children and grandchildren. However, she has not sought counseling for emotional distress and has joked with colleagues at work about the contamination. V. O'Donnell Testimony.

 22. Test Plaintiff Robert O'Neal was "terrified and petrified" when he saw the notice of contamination. He worried that he might get cancer, the disease from which his wife died. He has concerns about the future and has not had a full night's sleep since August, 1988. O'Neal Testimony.

 23. Test Plaintiff Christina Riedel was "scared" and "shocked" that she had used the contaminated water for a period of time. She worried about her health and that of any children she may have. Ms. Riedel had difficulty sleeping just after learning of the contamination. However, she had sleep difficulties before the contamination was discovered. She has not sought counseling for emotional distress and leads a normal life as a student at the Indiana University of Pennsylvania.

 Evidence of Negligence

 24. Use of TCE in vapor degreasers at NCAD between 1960 and 1980 was in accordance with industry standards at the time. The method by which TCE was used at NCAD during that time was also in accordance with industry standards. Testimony of Roger Minear, Ph.D (hereafter "Minear Testimony").

 25. The use of terra cotta pipes in the drainage system at NCAD was in accordance with industry standards of the time. Minear Testimony.

 26. A 1969 study of the NCAD AMA by the U.S. Army Environmental Hygiene Agency determined that the discharge of waste into the on-base lake formed by the Marsh Run Creek violated several Pennsylvania environmental laws. Further, the study recommended that the waste be channeled to a treatment facility. Special Study of Industrial Wastes Survey No. 24-006-69/70, New Cumberland Army Depot, New Cumberland, Pennsylvania, 27 October - 7 November 1969, U.S. Army Environmental Hygiene Agency (hereafter "1969 USAEHA Report").

 27. A 1972 study by the U.S. Army Environmental Hygiene Agency concluded that NCAD discharges to the Marsh Run Creek were having a significant and negative effect on the aquatic life of the creek. The effect was limited to the part of the creek within the confines of the NCAD and there was no evidence of a similar effect on the Susquehanna River, into which the Marsh Run Creek flows near the NCAD. The study recommended that further studies be done and that waste water be channeled to a treatment facility rather than the creek. Water Quality Biological Study No. 24-017-73, A Biological Assessment of the Surface Waters Associated with the New Cumberland Army Depot, New Cumberland, Pennsylvania, 18 October - 20 November 1972, U.S. Army Environmental Hygiene Agency (hereafter "1972 USAEHA Report"). *fn3"

 28. Because of the hydrogeologic structure of the area surrounding the AMA, groundwater flows in a south-southwesterly direction. Thus, most groundwater moving under the AMA empties into the Marsh Run Creek and is eventually discharged into the Susquehanna River to the east of Plaintiffs' homes. Hewitt Testimony; Government Exh. 43 (Appendix B to these Findings of Fact).

 29. Because of the hydrogeologic structure on which NCAD sits, the open channel and the corrugated metal pipe that empties into it (see Finding of Fact No. 9) are isolated from Plaintiffs' wells such that they are not the source of the well contamination, because groundwater from that area would not travel in the direction of Plaintiffs' homes. Hewitt Testimony; Government Exh. 43 (Appendix B) (Appendix B is a map prepared by Ms. Hewitt. The arrows show in which directions she testified the groundwater flows. The triangles represent the Plaintiffs' homes).

 30. There is no site near Plaintiffs' residences that could likely be the source of the well contamination other than the NCAD. While certain of the chemicals are used at the nearby Capital City Airport, the area in which they are used is significantly remote from Plaintiffs' homes and could not be a source of the contamination. Robelen Testimony.

 31. Given the direction of groundwater flow, the area in which the chromium sump was discovered under Warehouse 7 is the likely source of the contamination of Plaintiffs' wells. Hewitt Testimony; Robelen Testimony (indicating that the area of the chromium sump was one likely source); Government Exh. 43 (Appendix B).

 Medical Monitoring

 32. The test Plaintiffs drank and otherwise used water from the contaminated wells for an undetermined number of years. Undisputed. ...


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