Renken v. Harvey Aluminum (Incorporated)

• Decision Date: 23 December 1963
• Docket Number: Civ. No. 61-207.
• Citation: 226 F. Supp. 169
• Parties: R. L. RENKEN et al., Plaintiffs, v. HARVEY ALUMINUM (INCORPORATED), Defendant.
• Court: U.S. District Court — District of Oregon

226 F. Supp. 169

R. L. RENKEN et al., Plaintiffs, v. HARVEY ALUMINUM (INCORPORATED), Defendant.

Civ. No. 61-207.

United States District Court D. Oregon.

December 23, 1963.

James W. Morrell, Tooze, Powers, Kerr, Tooze & Morrell, Portland, Or., for plaintiff.

Sam F. Speerstra, Rhoten, Rhoten & Speerstra, Salem, Or., for defendant.

KILKENNY, District Judge.

Each of the plaintiffs, since 1958, and in many instances prior to that year, has been in continuous possession of land in Wasco County, Oregon, which land was and is used principally for agricultural and horticultural purposes, in growing and production, for home and commercial purposes, of certain fruit consisting of cherries, prunes, peaches and apricots.

Plaintiffs seek to enjoin the defendant from operating its plant in such a manner as to permit the escape therefrom of excessive quantities of the element, fluorine, which is carried by air currents to plaintiffs' lands. Defendant is a corporation, incorporated under the laws of the State of California. Since July 28, 1958, it has been and still is the operator of a certain aluminum reduction plant located near the city of The Dalles in Wasco County, Oregon. Since said date the plant has been continuously operated and, as an integral part of said operation, has emitted and still emits into the atmosphere quantities of matter chemically composed of various elements, including fluorides. The said matter in the form of particles, particulates, solids and gasses has been and is spread by currents of air and wind and, from time to time, such material has been deposited on plaintiffs' lands and fruit trees.

Defendant's plant was constructed, and is being operated, pursuant to the Defense Production Act of 1950, as amended. Its original cost, and subsequent additions, is in excess of $40,000,000.00. The plant annually produces approximately 80,000 tons of aluminum, which is used by the defendant, and others, throughout the United States for industrial and National Defense purposes. Approximately 550 persons, living in the area of The Dalles, are employed in said plant. It has a gross annual payroll of $3,500,000.00.

The plant produces primary aluminum, by the use of what is known as the vertical stud soderberg elecrolytic cells. At present 300 cells are in operation. The basic process employed at the plant is the same as that employed the world over in making aluminum, the process being precisely described by Judge East in his opinion in Fairview Farms, Inc. v. Reynolds Metals Company, 176 F.Supp. 178 (D.C.Or.1959). The vertical stud soderberg cells employed by Harvey were not used in the Reynolds plant. The essential difference between the cells, or pots, used in the Reynolds plant is, insofar as the escape of particulates and gasses is concerned, that Reynold uses a hood, with a controlling air system, which captures most of the stray gasses, affluents and particulates which might escape into the open area around the pots. The vertical type, employed by Harvey, has an apron which collects approximately 80% of these gasses and particulates, but the remaining 20% escapes from the area where the hoods would be located, mixes with other air in the building and then drifts upward into the water spray controls in the roof. It is conceded that in the production of aluminum there is inevitably a release, from the cells, of some gasses and particulates, including fluorides.

The initial fume control apparatus at the Harvey plant consisted of a cast iron skirt surrounding the anode, which collected a portion of the fumes at the source and directed them to burners mounted at both ends of each anode. To these burners were connected fume exhaust ducts which lead the fumes to a main collector pipe carrying them to the dust collector and a fan. The fan created a suction which pulled the fumes from the cells and the burners, through the ducts. From the fans the fumes are directed to a humidifying and bubbling chamber before entering the scrubber tower. The fumes are washed in the tower by multiple layers of water sprayers placed 10 feet apart. At the top of the towers is a mist eliminator.

Tests made, from time to time, indicate that the fume control system, thus described, operated at 95% efficiency, or better, during the test periods on the portion of the fumes caught and delivered to the system. The amount of equivalent fluoride ion leaving the scrubbing towers into the atmosphere from this control apparatus is calculated at 300 pounds per day. This system treats approximately 80% of the fumes released from the cells. The remaining 20% of the fumes escape into the open building, and rise to the top where they pass into roof monitors located at the top of each of the buildings housing the cells. In the spring of 1962, a system of sprayers and screens were installed in the roof monitor and this system has been operating at full capacity since the beginning of 1963. These sprayers and screens collect a portion of the fluorides reaching the roof monitor. Since this latest installation the roof monitor sprays and screens have been between 67 and 70% effective in collecting the fluorides reaching the roof monitors. The amount of equivalent fluoride ion leaving the roof monitors into the atmosphere is calculated at 1,000 pounds per day. Overall, the combination of the original fume control system, as it has been added to and improved from time to time, and the roof monitor sprays and screens has achieved approximately 90% effectiveness with respect to collecting the fluorides released from the aluminum cells.

The record is undisputed that approximately 1,300 pounds of fluoride ion escape from the roof monitors and scrubbing towers into the atmosphere each day. Although the prevailing wind is southwesterly, the record clearly shows that on numerous days each month and on many hours of each day, the area is without measurable wind. At such times, a blanket of smoke from defendant's plant, covers the area, including plaintiffs' lands and orchards. This blanket was observed by the Court, not only on the day of inspection of the plant, but also on many occasions since that time. There is no doubt in my mind but that better controls can be exercised over the escape of the material in question. No sound reason has been advanced by defendant why hoods, similar to those employed by Reynolds, should not be installed. While it is true that a substantial portion of the gasses and particulates escape at the time when the new aluminum ore is being introduced into the pot or the liquid metal is removed, I am convinced that such an escape could be prevented by a properly designed hood over the open area. I agree with the expert, that after the installation of the hood, the small amount of gasses which might escape on the introduction of ore or the removal of liquid metal would be inconsequential.

Likewise, the record convinces me of the feasability of the introduction of electrostatic precipitators for the removal of the minute or small particulates which are not removed by the other processes. The multi-cyclone dust collector now used in the plant at The Dalles is efficient in collecting the large or heavy particulates, but is of little value in removing the smaller variety. All of the experts agree that this is the field in which the electrostatic precipitators are at their best. The great weight of the evidence points to the conclusion that the installation of the cell hoods and the employment of electrostatic precipitators would greatly reduce, if not entirely eliminate, the escape of the excessive material now damaging the orchards of the plaintiffs.

While the cost of the installations of these additional controls will be a substantial sum, the fact remains that effective controls must be exercised over the escape of these noxious fumes. Such expenditures would not be so great as to substantially deprive defendant of the use of its property. While we are not dealing with the public as such, we must recognize that air pollution is one of the great problems now facing the American public. If necessary, the cost of installing adequate controls must be passed on to the ultimate consumer. The heavy cost of corrective devices is no reason why plaintiffs should stand by and suffer substantial damage.

DAMAGES TO PLAINTIFFS

It is my considered opinion that the evidence on damage to cherries is so conflicting and controversial it would be difficult to hold that the cherry crops were severely damaged by the gasses or particulates emitted from defendant's plant. The evidence clearly shows that the year 1960, the one in which plaintiffs claim their principal cherry damage, was an exceptionally light cherry crop, not only in Wasco County, but throughout the States of Oregon and Washington. I am convinced that the light cherry crop in 1960 was due to factors other than the fluorides escaping from the plant of the defendant. However, the evidence is convincing that the deposit of this material on the trees at blossom time creates damage.

On the other hand, I find that the evidence is clear and convincing that peaches and apricots and peach and apricot trees were damaged by the escape of the fluorine and fluorides from defendant's plant, and, that each plaintiff owning a peach or apricot orchard, sustained a substantial damage from said source to his crops and trees during each year since 1958. This fact is not seriously contested by the defendant. The defendant recognized this damage and voluntarily dispatched its crews to different peach orchards in the area to ascertain the amount and settle for the damages caused to the orchard owners. Defendant agrees that it settled the damage claims of plaintiffs Ellett, Feling, Fleck, Weston Meyer, W. H. Meyers, Jr., Wachter and Polehn for loss of prune and apricot crops and damage to peaches and damage to or loss of peach, prune or apricot trees occurring as a result of the operation of the...