Clark v. US

• Citation: 660 F. Supp. 1164
• Decision Date: 20 April 1987
• Docket Number: No. C85-97TB.,C85-97TB.
• Parties: Mary CLARK, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Washington

660 F. Supp. 1164

Mary CLARK, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

No. C85-97TB.

United States District Court, W.D. Washington.

April 20, 1987.

G. Lee Raaen and Ann Cross Eschenbach, Seattle, Wash., for plaintiff Clark.

David Lord, Ferguson & Burdell, Seattle, Wash., for plaintiff Nojd.

Robert N. Kelly, JoAnn J. Bordeaux, Gail Killefer, and William E. Michaels, Washington, D.C., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BRYAN, District Judge.

THIS MATTER having come on before the undersigned Judge of the above-entitled Court for trial, and the Court having heard the oral testimony presented, having reviewed the documentary evidence admitted, having heard oral argument from all parties, and being otherwise fully advised in the premises, now, therefore, enters the following:

FINDINGS OF FACT

1.

The Court's oral decisions on December 22, 1986, December 23, 1986, and January 7, 1987, attached hereto, are incorporated by this reference as though fully stated herein.

2.

Plaintiffs Edwin Nojd and Genevieve Nojd are husband and wife, and the parents of plaintiffs Marta Vinnedge and Norma Crouse. Norma Crouse is presently a resident of Spanaway, Washington, and Marta Vinnedge is presently a resident of Seattle, Washington.

3.

Plaintiff Mary Clark, a single woman, is the widow of Harvey Clark and the mother of plaintiff Janice Butler. Janice Butler is the mother of minor plaintiffs Alan McArthur and Aaron Frank. Plaintiff John Gravatt, a single man not related to the other plaintiffs, has been a tenant on the Clark property since 1977.

4.

Plaintiffs Edwin and Genevieve Nojd are the owners of approximately five (5) acres of land ("Nojd Property") in American Lake Gardens, an unincorporated area south of Tacoma, Pierce County, Washington. American Lake Gardens borders on McChord Air Force Base, an installation owned and operated by defendant United States of America. Since 1947, Edwin and Genevieve Nojd have resided on the Nojd Property, the legal description of which is as follows:

Parcel 1, acquired June 12, 1957: Beginning on the North line of Section 23, Township 19 North, Range 2 East, W.M. at a point 467.85 feet East of the Northwest corner thereof, thence on a line if continued would intersect the East and West centerline of said Section 23, at a point 488.28 feet East of the quarter section of the West side of said section, South 32.18 feet to the true place of beginning for this description; thence continuing on said line South 600 feet, thence East at right angles to the last course 330; thence North at right angles to the last course 600 feet; thence West 300 feet to the true place of beginning, in Pierce County, Washington.

Parcel 2, acquired April 13, 1967: Beginning at a point 712.85 feet East of the Northwest corner of Section 23, Township 19 North, Range 2 East of W.M., thence South 32.18 feet to the point of beginning; thence South 600 feet; thence East 85 feet, thence North 600 feet, thence West 85 feet to point of beginning; in Pierce County, State of Washington.

5.

There are three residences on the Nojd Property: 6507 — 146th Street S.W.; 6511 — 146th Street S.W.; 6419 — 146th Street S.W. Edwin Nojd, Genevieve Nojd and Norma Crouse resided at 6507—146th Street S.W. from 1947 through January 1963. Marta Vinnedge resided at 6507—146th Street S.W. from April 1951 through January 1963. From January 1963 until the present, Edwin and Genevieve Nojd have resided at 6511 — 146th Street S.W. Norma Crouse resided at that address from January 1963 until 1966, and from 1970 until 1971. Marta Vinnedge resided at that address from January 1963 until 1969, from 1973 until 1978, and from 1979 to 1980.

6.

Marta Vinnedge and Norma Crouse have been frequent and regular visitors to their parents' property, and during the course of such visits have consumed water on a frequent and regular basis. One well on the Nojd Property provides water to 6419 and 6507 — 146th Street S.W., and a second well provides water to 6511 — 146th Street S.W. The two wells are approximately 200 feet apart. Edwin Nojd, Genevieve Nojd, Norma Crouse and Marta Vinnedge have all at various times consumed water from wells on the Nojd Property serving 6511 — 146th Street S.W. and 6507 — 146th Street S.W. On occasion, water from the well serving the residences at 6507 and 6419 — 146th Street has been pumped directly to the Nojd residence at 6511 — 146th Street, the last such instance after 1980. A relative resided at 6507 — 146th Street until 1970, and all Nojd plaintiffs visited regularly and consumed water while so doing.

7.

Plaintiff Mary Clark is the owner of approximately ten (10) acres of land ("Clark Property") in American Lake Gardens, said property legally described as follows:

East five (5) acres of the following described property: Beginning on the North line of Section 23, Township 19 North, Range 2 East, W.M., at a point 797.83 feet East of the Northwest corner of said section; thence on a line which if continued would intersect the East and West centerline of said section at a point 818.28 feet East of the quarter corner of the West side of said section South 632.09 feet; thence at right angles to the last course East 324.19 feet; thence with the same meridian of reference, North 68°03'00" East 184.30 feet; thence North 73°06'00" East 172.32 feet; thence North 514.28 feet to North line of Section 23, at a point 1,457.85 feet East of the Northwest corner thereof; thence on said North line West 650 feet to the point of beginning.

Also beginning on the North line of Section 23, Township 19 North, Range 2 East, W.M. at a point 1457.85 feet East of the Northwest corner of said section; thence on a line which if continued will intersect the East and West center of said section at a point 1478.28 feet East of quarter section corner on the West side of said section South 514.28 feet; thence with same meridian of reference North 73°6'00" East 332.49 feet; thence North 64°51'00" East 143.85 feet; thence North 355.05 feet to the North line of Section 23, at a point 1906.20 feet East of the Northwest corner of said section; thence on said North line West 448.35 feet to point of beginning except roads; situate in the County of Pierce, State of Washington.

8.

The Mary Clark property contains: A main residence (6117 — 146th Street S.W.); a rental house (6107 — 146th Street S.W.); a duplex located at 6111-6113 — 146th Street S.W.; a garage; and a stable with a tack room. Mary Clark has resided at 6117 — 146th Street S.W., Tacoma, Washington from 1948 to the present. John Gravatt has resided on the Clark property from 1977 to the present. Janice Butler resided on the Clark property from 1950 through 1968, from 1969 to 1975, from 1977 to 1981 and from August 1985 to the present. Allen McArthur was born in 1969 and Aaron Frank in 1976. They have resided on the Clark property when their mother (Butler) did so. The plaintiffs consumed well water while residing on the property until 1983.

9.

The Nojd property located at 6507 — 146th Street S.W. has been rented to tenants since 1963. The Nojd property located at 6419 — 146th Street S.W. has been rented to tenants since 1975.

10.

Prior to the discovery of contaminated water in 1983, plaintiff Mary Clark had tenants residing on her property in her rental units. Since 1983, John Gravatt has remained as a tenant; Janice Butler and her two children became tenants in August 1985. Mary Clark would not accept rent from John Gravatt after they were advised not to use the well water for drinking or cooking in March 1983, although he offered to continue paying rent. Janice Butler and her family have not paid rent since they moved to the property in August 1985.

11.

Since 1938, the defendant United States of America has operated a military reservation known as McChord Air Force Base ("McChord") at Pierce County, Washington. Over a period of years, the defendant has disposed of some part of its waste materials at landfill sites and burn pits on McChord.

12.

In December 1982 or January 1983, plaintiff Mary Clark notified Air Force officials at McChord that she was concerned her water might be contaminated. The Air Force did not respond to her concerns in a manner which was satisfactory to Clark. Thereafter, plaintiff Clark contacted the Tacoma-Pierce County Health Department to sample her water drawn from wells on her property. The Tacoma-Pierce County Health Department contacted the EPA, which actually tested Clark's well water for contamination in late January 1983. Clark was advised not to consume the water while waiting for the EPA's test results. After the EPA had received water test results from the Clark property in March 1983, Mary Clark, her family and tenants were advised not to consume water drawn from wells on the Clark Property.

13.

The two wells providing a domestic water supply to the Nojd Property were tested by the EPA in March of 1983. After the results were received by the EPA, Edwin and Genevieve Nojd and their tenants were advised not to consume water drawn from these two wells. Marta Vinnedge and Norma Crouse were informed by their parents of the contamination and of the advice concerning consumption of water.

14.

In May 1983, after the well water on the Nojd and Clark Properties had been analyzed by the EPA, Edwin Nojd, Genevieve Nojd, Mary Clark, John Gravatt and Janice Butler were immediately informed by representatives of the Tacoma Pierce County Health Department that their water supplies contained trichloroethylene ("TCE"), a possible carcinogen. The remaining plaintiffs received the same information soon thereafter.

15.

It is stipulated that the contaminants trichloroethylene ("TCE"), and a derivative of TCE; 1, 2 trans dichloroethylene ("DCE") have been found in wells on the Nojd Property in the following amounts on the dates indicated:

                                 6419 - 146th S.W
                       Date                    DCE

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