Stockdale v. Agrico Chemical Co., Div. of Con. Oil Co.

• Decision Date: 21 March 1972
• Docket Number: Civ. No. 69-C-2010-C.
• Citation: 340 F. Supp. 244
• Parties: Louis STOCKDALE, Plaintiff, v. AGRICO CHEMICAL COMPANY, DIVISION OF CONTINENTAL OIL COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Iowa

340 F. Supp. 244

Louis STOCKDALE, Plaintiff, v. AGRICO CHEMICAL COMPANY, DIVISION OF CONTINENTAL OIL COMPANY, Defendant.

Civ. No. 69-C-2010-C.

United States District Court, N. D. Iowa, Central Division.

March 21, 1972.

COPYRIGHT MATERIAL OMITTED

Franklin Jaqua, Humboldt, Iowa, John H. Mitchell, Fort Dodge, Iowa, and William R. King, Des Moines, Iowa, for plaintiff.

Paul Ahlers, Des Moines, Iowa, for defendant.

MEMORANDUM AND ORDER.

HANSON, Chief Judge.

This matter came on for trial before the Court on June 7, 1971, and trial was concluded on June 20, 1971, subject to the taking of certain depositions by both parties, as agreed, and the record has now been closed and the case submitted.

Historically, the cause now before the Court constitutes the second time consideration and disposition has been made. The former case involved the same plaintiff and the predecessor of the defendant. It bears Civil No. 864 and is evidenced by a Memorandum dated and filed on October 29 1964. (Appendix to Memorandum Opinion of Court: Memorandum Opinion of October 29, 1964).

For several very fundamental reasons, the Court refers to the October 29, 1964, opinion. In the first instance both parties have in the record of this case referred to it in evidence and briefs. Secondly, by referring to the opinion, it will obviate the necessity of repetitive findings. The general operations and physical layout of the defendant's plant is therein set out. The general description of plaintiff's property and farm layout plus location and time of acquisition are the same now as when the previous lawsuit was tried. Last and perhaps most important, the future damages were contingent upon the ultimate skill of defendant in abatement of nuisance and possible injury to others. Possible jurisdiction was actually maintained for further assessment in the event it became necessary.

The Complaint in the present case was filed April 15, 1969, and therein it is alleged that the operation of defendant's plant interferes with plaintiff's enjoyment of his property, is injurious to human and animal health, and makes animal and plant foods grown on plaintiff's property unsafe for human and animal consumption, has damaged the property of the plaintiff and substantially reduced the market value of his property.

The Complaint alleges the existence of a public and private nuisance and prays for abatement and injunctive relief as well as actual and exemplary damages. The Court has had the benefit of exhaustive briefs from both of the parties and having reviewed the numerous exhibits in this matter now makes the following findings of fact:

The first proposition contained in defendant's Brief asserts that the plaintiff has failed to carry his burden of proof to establish that the plant of the defendant constitutes a nuisance, and that the record evidence demonstrates that the nuisance found to exist at the first trial has been abated.

In the Court's earlier Memorandum filed October 29, 1964, the following statement appears:

"The court finds that under the strict balance of convenience test and because the evidence was strong that the nuisance was abated in 1963, or was about to be abated in 1963, the injunction should not be granted to abate the nuisance."

The evidence shows that since the trial of the earlier case the defendant has followed a consistent program of plant improvement designed to incorporate the latest improvements in the conduct of its plant operations. To this end substantial sums of money have been paid from time to time as itemized in the testimony of Mr. John Doyle, who retired June 1, 1971, as manager of defendant's plant.

These improvements are itemized as follows:

                1963     Revamped and added improved and more efficient
                         equipment to the bag house dust collector.          $20,000
                         Installed Venturi scrubber for collection of gases
                         in wet mix department                               $ 6,600
                1964     Replaced glass fabric bags on bag house dust
                         collector with new improved french nylon bags.      $ 6,600
                         Installed additional Gay Lussac Tower in acid
                         plant to further reduce emission of fumes.          $30,000
                         Constructed additional settling pond for wet mix
                         waste disposal.                                     $ 5,800
                         Replaced french nylon bags with new improved
                         dacron bags on dry type bag house dust collector.   $ 4,600
                1965     Installed new Venturi scrubber in the continuous
                         ammoniation department.                             $95,000
                1967     Improved Venturi scrubber by installation of better
                         more reliable source of power.                      $ 3,600
                         Purchased standby fan wheel for Venturi scrubber.   $ 3,100
                1969     Installed new wet impingement type scrubber in
                         superphosphate department. (Approximately half
                         of this money has been spent, the balance is
                         appropriated but not yet spent).                    $61,000
                         Installed a new bag house dust collector (wheelabrator)
                         in the continuous ammoniation department
                         on the cooler side of the process.                  $24,000
                

Substantial additional funds have also been appropriated to take advantage of any technical developments in the future.

Defendant's efforts to keep abreast of modern technology is well illustrated by the testimony illicited from defendant's witness, Mr. Harold Long.

Plaintiff's Exhibit 112 consisted of proposed Iowa Ambient Air Standards to become effective September 23, 1971. Ambient air samples taken by the defendant's technologists in April, 1970, revealed that the defendant was at that time well within the standard requirements which were not to be effective until approximately eighteen months later.

It is significant that the plaintiff admitted that according to his own observations emissions from the plant were reduced in the years 1963, 1964 and 1965.

In his efforts to establish the continuation of the alleged nuisance, the plaintiff attempted to show that the emissions from the plant of defendant damaged crops and other vegetation on plaintiff's farm, injured and killed substantial quantities of livestock, damaged his personal health and diminished the value of his real estate.

Numerous forage samples were taken on behalf of the parties and the Iowa State Department of Health. These samples were tested in the laboratories in an effort to ascertain possible damage. The results of these random samples are not consistent; and it is difficult for the Court to point to any particular sample or series of samples and say that they were representative of the general conditions then existing or indicative of harmful or excessive emissions from defendant's plant being cast upon plaintiff's property. In addition, soil samples were taken and tested for fluoride content; but it is impractical under the record in this case for the Court to conclude that defendant's plant was or was not the primary cause for fluorides in the soil on plaintiff's property. For example, a soil sample from a point twelve miles southeast of defendant's plant contained 119 parts per million of fluoride and a sample one-fourth of a mile southeast of defendant's plant contained 121 parts per million of fluoride.

Fluorides are common in nature. Indeed, the record shows that fluorine is a quite common substance almost universally present in the atmosphere at earth level and in varying amounts in almost all the earth itself and in some areas there naturally is a surplus of fluorine in the soil. Normally, it is in a compound form and substantial amounts of fluorides may be found in soil away from any plant or factory.

Samples of harvested corn silage indicated fluoride levels of 33 (possibly 38) parts per million and 15 parts per million which were well within acknowledged tolerable limits for livestock.

Plaintiff made some claim that there was excessive selenium in plants and soil on plaintiff's farm. Inconsistent test results were obtained but the Court finds that the independent tests conducted by the Hygienic Laboratory of the State of Iowa are the most likely to be authentic and representative of actual conditions. Painstaking care was taken in connection with the laboratory analyses by the State Hygienic Laboratory and selective samples of soil and corn leaves were found to be well below tolerable limits.

Plaintiff offered in evidence his Exhibit 60 which was a tabulation of hogs, sheep and cattle which the plaintiff claimed to have been killed by the emissions from defendant's plant. These losses were substantial in numbers. No qualified expert testified that a single death loss was attributable to the emissions from defendant's plant or fluoride poisoning. On the contrary, the record shows that animals examined post mortem at Iowa State University, Fort Dodge Laboratories and by Dr. Harmon, a practicing veterinarian, were found to be diseased from parasites, bacteria or pneumonia. No expert witness attempted to relate such conditions to the operation of defendant's plant.

Similar findings must be made in connection with plaintiff's attempt to relate crop and other vegetation damage to the operation of defendant's plant.

The plaintiff complained particularly regarding his corn crops. Mr. Lou Sullivan, a qualified agronomist, inspected the current corn planting on plaintiff's farm and found an insufficient plant population and irregular planting of the kernels. Plaintiff complained that his corn crops appeared to ripen prematurely and of lack of yield. He used no herbicides, pesticides or chemical fertilizers other than that with which the original seed may have been coated. The record shows that under such conditions top yields may not be anticipated. In addition, the plaintiff has had continuous corn in the tract (development land) south of the east and west road from the time he commenced farming it in 1957.

...