Miller v. Cudahy Co.
| Decision Date | 13 August 1984 |
| Docket Number | Civ. A. No. 77-1212. |
| Citation | 592 F. Supp. 976 |
| Parties | Cecil W. MILLER and Mildred E. Miller, Joint Tenants; Margaret L. Birchenough Testamentary Trust, Donald L. Birchenough and Walter Wright, Trustees; Ruth M. Hollinger, Individually and as Joint Tenant with Delbert Hollinger; John E. Edwards and Kermit C. Edwards, Joint Tenants; Homer Sharpe; Cecil M. Tobias and Frances Tobias, Joint Tenants; Paul F. Westrup and Ardis B. Westrup, Joint Tenants; Jay Brothers; Lyle Brothers, Individually and as Joint Tenant with Patricia R. Brothers; Alvin Engelland; Ansel Engelland; Jack Engelland and Vivian M. Engelland, Joint Tenants; Gerald N. Jones and Donna Jones, Joint Tenants; Raymond E. Tobias; Wilmor H. Oden; Raphael Roeder and Annabelle A. Roeder, Joint Tenants; Edris Edwards; Edward F. Janda and Anna Mae Janda, Joint Tenants; Harry Zwick; Arthur H. Oden; William L. Bemis and Dorothy Bemis, Joint Tenants; Roger Edwards; John Engelland; Don Engelland; Jim Hollinger; Curtis Miller; Ed Tobias; Curtis Tobias; Don Zwick; and Alvin Zwick, Plaintiffs, v. CUDAHY COMPANY, a Delaware Corporation; and General Host Corporation, a New York Corporation, Defendants. |
| Court | U.S. District Court — District of Kansas |
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Deborah Carney and Lee Turner, Turner & Boisseau, Chartered, Great Bend, Kan., for plaintiffs.
Thomas Kitch and Ron Campbell, Fleeson, Gooing, Coulson & Kitch, Wichita, Kan., for defendants.
This is a pollution case in which over forty landowners and lessees seek to recover damages arising from salt pollution of the fresh-water aquifer beneath their lands. The case was called for a trial to the Court, sitting without a jury, on Monday, March 26, 1984. The parties presented their evidence over a span of thirty-three trial days, and all parties rested on Tuesday, May 15, 1984, at approximately seven o'clock in the evening. In the course of the trial, the Court heard live testimony from over fifty witnesses, with the plaintiffs calling approximately twenty-eight witnesses and the defendants approximately twenty-five. Some witnesses were repeatedly called to the stand. In addition, thousands of individual exhibits were introduced into evidence, including business records, demonstrative charts, maps, graphs, aerial photographs, models, rusty pipes, bottles of polluted water, and a salt block.
Following the trial, both sides submitted lengthy post-trial briefs containing suggested findings of fact and conclusions of law, with references to the voluminous record, and additional exhibits. The Court has carefully read these briefs, reviewed its trial notes, and individually assessed the credibility of the many witnesses. The Court is, after this preparation, ready to enter a judgment in this case pursuant to Rules 52(a), 54(b), and 58 of the Federal Rules of Civil Procedure.
Because the number of findings of fact is so great, the Court has subdivided those findings with several subject headings. These headings are provided solely as a convenience in understanding the organization of the findings and are otherwise without substantive significance.
1. The plaintiffs in this case are owners and lessees of rural realty in Rice County, Kansas. The vast majority of this realty is used for agricultural production, while the remainder is used for rural homesites. The plaintiffs are in lawful possession of their properties.
6. At the time this lawsuit was filed, one of the operating divisions of Cudahy was the American Salt Company American Salt, with manufacturing plants at Lyons, Kansas and at the Great Salt Lake in Utah.
7. After the lawsuit was filed, General Host divested itself of Cudahy, but retained American Salt as a wholly-owned subsidiary. Subsequently, General Host signed a letter of intent to sell American Salt to a third party. That agreement remains executory at this time.
2. Preliminary Geography
8. The Kansas plant of American Salt is located approximately one-half mile southeast of Lyons, Kansas and approximately four miles northwest of Saxman, Kansas. American Salt has carried on operations there since 1908.
9. Two miles south of Lyons is Cow Creek, a minor tributary of the Arkansas River, that meanders in a generally southeasterly direction.
10. Below Cow Creek is the Cow Creek Valley Aquifer the aquifer, a fresh-water-bearing stratum. The aquifer can be found between the depths of roughly ten and seventy feet, and it occupies a width of between one and two miles.
11. Like the creek above, the aquifer below flows in a generally southeasterly direction, although at a much slower rate, between one and a half to five feet per day. In its natural state, free of the influence of pumping wells, the water in the aquifer requires about ten years to travel one mile.
12. The aquifer has well-defined borders on its sides, much like the banks of a surface creek. Cow Creek operates as a southern boundary, while a geologic formation that essentially parallels Cow Creek at a distance of one and a half to three miles serves as a northern boundary.
13. This lawsuit involves the land overlying the aquifer between the American Salt plant to the northwest and Saxman to the southeast. This land is owned or leased by the plaintiffs. The water in the aquifer passes under the American Salt plant before it passes under the plaintiffs' lands, and is heavily contaminated with salt.
3. Basics of Salt Mining
14. The natural salt formation exploited by American Salt lies approximately 725 feet below the ground surface in a stratum 280 feet thick. Interspersed within the salt stratum are layers of shale of various thicknesses.
15. Two methods are employed by American Salt to get this salt to the surface. The first method utilizes a shaft mine and involves sending workers down into the salt stratum to physically remove solid salt and transport it to the surface.
16. The second method utilizes a matrix of brine wells and involves injecting high-pressure fresh water into the salt stratum, allowing the water to dissolve the salt, recovering the resulting brine, and evaporating it to produce solid salt. This method is called solution mining.
17. Until 1979, American Salt drilled its wells as individual brine wells. An individual brine well is so constructed that fresh water may be injected into and brine withdrawn from the salt stratum through the same well.
18. Three steps are involved in drilling and casing an individual brine well. First, a relatively shallow surface hole is drilled and an 8 5/8 inch surface casing set into that hole. Second, a production hole is drilled to the bottom of the salt stratum, and a 5½ inch production casing set into that hole so that the casing ends near the top of the salt stratum. Third, a 2 3/8 inch production tubing is suspended inside the production casing so that the tubing ends near the bottom of the salt stratum. This creates two pathways into the salt stratum: one inside the tubing and the second between the tubing and the production casing. The space between the tubing and the production casing is called the annulus.
19. In the so-called "normal mode" of solution mining, fresh water is injected through the tubing to the bottom of the salt stratum. This high-pressure water dissolves the salt and forces the resulting brine, which is heavier than fresh water, to flow upward through the annulus to the surface. Such operation washes a compact spherical cavity deep in the salt stratum, and produces a modest brine flow of ten to fifteen gallons per minute gpm from a mature well.
20. In the so-called "reverse mode" of solution mining, fresh water is injected through the annulus and brine is withdrawn from the tubing. Such operation washes a very large, shallow, trumpetshaped cavity on the top of the salt stratum, but produces a substantially greater brine flow of forty to forty-five gpm from a mature well.
21. American Salt's individual brine wells are situated approximately 400 feet apart. Long-continued operation of these wells in the normal mode, or substantially shorter operation in the reverse mode, can cause the cavities in the salt stratum to wash together. When this occurs, the wells are said to be interconnected. Four large areas of interconnection, involving almost all of American Salt's individual wells, have developed in both the original brinefield the old brinefield and the 1959 individual-well addition the new brinefield.
22. In 1979, American Salt switched to the gallery method of solution mining. To create a gallery, three wells are drilled and surface and production casing is installed, but no production tubing is installed. Brine is then injected into the center well under pressure great enough to lift the 800 feet of overburden and to create a fracture in the salt stratum. This procedure is called a hydrofrac. If the hydrofrac is successful, the fracture will pass through the bore holes of the two outside wells and permit a channel to be washed between them. Brine is used to create the fractures because it will not rapidly wash a channel if the fracture goes astray, as they are wont to do. Once a connection between the target wells is established, fresh water is injected through the well at one end of the gallery and brine is withdrawn from the well at the other end of the gallery. This method produces large quantities of brine and avoids the numerous...
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