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AIR POLLUTION-1966

THURSDAY, JUNE 9, 1966

U.S. SENATE,
SUBCOMMITTEE ON AIR AND WATER POLLUTION
OF THE COMMITTEE ON PUBLIC WORKS,

Washington, D.C. The subcommittee met at 10 a.m., pursuant to recess, in room +200, Senate Office Building, Senator Edmund S. Muskie (chairman of the subcommittee) presiding:

Present: Senators Muskie, Randolph, and Boggs. Senator MUSKIE. The committee will come to order. It is a pleasure to welcome this morning an old friend and a distinguished colleague who has been one of the leaders in the crusade against air and water pollution. It is a little difficult for me to understand how States like Montana and Maine generate special interest in air pollution. Perhaps the two States together have a monopoly on clean air in this country.

Nevertheless, I think it is interesting and reassuring that the citizens of both States are concerned with this problem. I think the citizens of Montana are well served by a Senator who is so alert to the problem and to the dangers of pollution. It is a pleasure to welcome you here today.

STATEMENT OF HON. LEE METCALF, A U.S. SENATOR FROM THE

STATE OF MONTANA

Senator METCALF. Thank you, Mr. Chairman. In the course of my testimony I will demonstrate that a State as sparsely populated as Montana has an air pollution problem, too.

And water pollution problems. That shows that every State, not only the States of New York, Illinois, and the heavily populated States have this problem of pollution.

Mr. Chairman, of course the efforts that you and the members of your committee have made in the past 5 years to meet this increasing problem of air and water pollution deserve the highest public praise.

As a former member of this subcommittee, I know full well how all of you have impressed on the national consciousness the seriousness of the contamination of our environment. No longer is air and water pollution a concern primarily of scientists and engineers—it has become a vital public issue.

The hearings you began earlier this week prove, once again, that the concern of this subcommittee goes beyond pending legislation by performing a vital function in educating the Nation about specific air

pollutants which cost the Nation billions of our dollars each year in economic losses and threaten our lives and the lives of our children.

Air pollution in the United States is truly a national problem. It is not only a hazard in our highly industrialized metropolitan areas; air pollution is a threat in the Rocky Mountains, in the farmlands of central Florida, in the vast expanses of the Middle West, and, in fact, wherever air pollution sources may be found.

I am especially concerned with air pollution because of problems that exist in my own State. That air pollution can be as acute in Missoula which has a population of approximately 30,000 as it can be in New York or Chicago is a matter of public record. Missoula is truly a beautiful city, in breathtaking surroundings. The city is fondly called the garden spot of the West. However, since location in the Missoula Valley of the pulp and paper industry this statement has been questioned by some.

Frequent meteorological inversions which occur in the valley cause the wastes emitted by these industries to be trapped close to the ground, thus throwing over the area a noxious, unpleasant blanket of smoke. Often visibility is reduced by close to 50 percent, literally turning day into dusk. Most of the people affected by this pollution are aware of the seriousness of the problem. Local physicians have warned of possible adverse health effects,

I will cite one other instance of serious air pollution in my State. It involves fluoride contamination from a phosphate plant in the town of Garrison. On March 15, 1966, Montana's State health officer advised me as follows concerning the intensification of air pollution in that community, quote:

Sometime prior to the first of the year, the company expanded its facilities by doubling the number of kilns that it has in operation. Whether the quantity of material produced is also doubled, tripled or remains the same as it was we do not know. It would appear, however, from our meager sampling data that the fluoride concentrations both in the grass and in the air have increased as much as fivefold for air values, and from ten to fiftyfold for grass values.

Prior to this year's increase in pollution in that community local citizens had already started litigation against the company. The pol; lution not only endangered health, it endanger the cattle herds and the timber industry. The court recently ruled for the plaintiffs.

That, Mr. Chairman, is a landmark decision in the Montana courts where these people have gone in, sued for damages, and have secured damages for pollution from this phosphate industry.

Senator MUSKIE. Is the court involved a court of record, Senator Metcalf?

Senator METCALF, This is a district court.

Senator MUSKIE. Is there a written opinion that we could include in the record ?

Senator METCALF. There is not a written opinion. There is a judgment that I would be glad to put in the record.

(Subsequently Senator Metcalf submitted the following exhibit :)

IN THE DISTRICT COURT OF THE 18TH JUDICIAL DISTRICT OF THE STATE OF

MONTANA, IN AND FOR THE COUNTY OF GALLATIN

(No. 16169)

David Dutton, et al, Plaintiffs, v. Rocky Mountain Phosphates, Inc., Defendant

(No. 16470)

Eduard Vollenberg, et ux, Plaintiffs, v. Rocky Mountain Phosphates, Inc.,

Defendant

JUDGMENT

The above entitled actions came on for trial before the Court and jury on Jarch 21, 1966, and continued until April 2, 1966. The jury had for its consideration the determination as to whether or not the above named defendant was liable in damages to the plaintiffs and the Court had for its exclusive determination the prayer made by plaintiffs that a permanent injunction should issue to restrain the defendant company from discharging into the atmosphere fluoride compounds in such an amount as to be damaging to livestock owned by plaintiffs. Plaintiffs Mollenberg, Dutton, Tavenner, Graveley, Brand, Knop and Gilman appeared in person and through their counsel Russell F. Smith (of the firm of Smith, Boone & Karlberg), Alfred F. Dougherty and Douglas Drysdale, The action brought by co-plaintiffs Tuppes and Perkins was dismissed on motion of their counsel. The actions brought by co-plaintiffs Christofferson and Christofferson, and Donald Rock were dismissed as to the the question of damages. The defendant appeared by its President, Bryce L. Rhodes and its counsel Malcolm MacCalman and Wade J. Dahood (of the law firm of Knight & Dahood). Extensive testimony and other evidence was submitted and the Court having duly considered the evidence and having been fully advise in the law and the premises and Findings of Fact and Conclusions of Law having been filed herein and having directed that judgment be entered in accordance therewith and by reason of the law and findings :

It is hereby ordered, adjudged and decreed that all of the Plaintiff's applications and actions for a permanent injunction to enjoin the operation of defendant's plant at Garrison, Montana, be and hereby are denied and said actions dismissed with costs to defendant. Dated this 16 day of May, 1966.

W. W. LESSLEY,

District Judge.

IN THE DISTRICT COURT OF THE 18TH JUDICIAL DISTRICT OF THE STATE OF MONTANA,

IN AND FOR THE COUNTY OF GALLATIN

(No. 16469)

David Dutton, et al. Plaintiffs, v. Rocky Mountain Phosphates, Inc., a Corporation, Defendent, and (No. 16470) Edward Mollenberg, et ux, Plaintiffs, v. Rocky Mountain Phosphates, Inc., a Corporation, Defendant

FINDINGS OF FACT AND CONCLUSIONS OF LAW The abore-entitled actions came on for trial before the Court and jury on March 21, 1966, and continued until April 2, 1966. The jury had for its consideration the determination as to whether or not the above-named defendant was liable in damages to the plaintiffs and the Court had for its exclusive determination the prayer made by plaintiffs that a permanent injunction should issue to restrain the defendant company from dischargnig into the atmosphere fluoride compounds in such an amount as to be damaging to livestock owned by plaintiffs. Plaintiffs Mollenberg, Dutton, Travener, Graveley, Brand, Knop

64-886-66--11

and Gilman appeared in person and through their counsel Russell E. Smith (of the firm of Smith, Boone & Karlberg), Alfred F. Dougherty and Douglas Drysdale. The action brought by co-plaintiffs Tuppes and Perkins was dismissed on motion of their counsel. The actions brought by co-plaintiffs Christofferson and Christofferson and Donald Beck were dismissed as to the question of damages. The defendant appeared by its President, Bryce L. Rhodes and its counsel Malcolm MacCalman and Wade J. Dahood (of the law firm of Knight & Dahood). Extensive testimony and other evidence was submitted and the Court having duly considered the evidence and being fully advised in the premises now finds the following:

FINDINGS OF FACT

1

Garrison, Montana, is a rural community situated at the junction of the Little Blackfoot and Clark's Fork River in Powell County, Montana ; the lands within an approximate fifteen-mile radius of Garrison are agricultural in character and suited to the production of grass and hay; these lands are now, and for many years have been, devoted to the raising of cattle.

2

The plaintiffs are the owners of land located within an approximate radius of fifteen miles from Garrison, Montana, and are cattle producers.

3

During the years 1962 and 1963 the defendant company constructed a manufacturing plant at Garrison, Montana, for the purpose of producing defluorinated phosphate which is a mineral feed supplement used in the feeding of livestock; that defluorinated phosphate is produced from raw phosphate rock which contains 3.3% to 4.2% fluorides, most of which must be removed to produce defluorinated phosphate which in its finished form contains not more than .18% fuorides. That the fluorides which are removed from the raw phosphate rock are so removed from the smoke and gas by means of a system of water sprays and the balance is emitted into the atmosphere from the plant smoke stack.

4

That fluoride compounds in hay or grass are toxic to livestock when the concentration in such hay or grass is above 50 parts per million and when such hay or grass is ingested over a considerable period of time; the toxic effect on the animals is known as fluorosis, which may either be damaging or nondamaging; then excessive amounts of fluoride compounds are ingested the livestock demonstrate one or more of the following symptoms: mottling of teeth, the absence of, or impairment of, tooth enamel, skeletal defects including osteofluorosis, and highly excessive doseages result in the deterioration of the animal's general health.

That a portion of plaintiffs' cattle have in the past demonstrated evidence of fluorosis as indicated by the presence of teeth mottling and osteofluorosis; the specific extent and effect of such fluorosis caused by the defendant's operation may be shown.

6

That plaintiffs' damage is not irreparable and can be measured in money; injury in the past has been so measured by judgments secured and executed upon by the plaintiffs.

7. That originally the defendant's operation required that the raw phosphate rock be treated with sulphuric acid and phosphoric acid which made it impossible for defendant company to treat the smoke and gases given off in the kiln with water sprays; however, in March of 1965, defendant company changed its

process by eliminating the use of sulphuric acid and by adopting the use of moda ash. That after the inception of this new process the defendant installed a system of water sprays which treated all of the smoke and gas given off by the kiln before such effluents were released into the smoke stack. Tests of hay samples and other tests taken during the year 1965 indicate that such systemi of treating the smoke and gases with water sprays effectively removed approximately 95% of the fluorides given off in the manufacturing process. That since that time, in fact in January of 1966, the defendant company installed a new wet scrubbing system manufactured and installed by Aero-Tech Industries of Greenwich, Connecticut. That the defendant cannot operate its kilu without operating such scrubber; that testimony was given by a chemical engineer employed by the manufacturer of such scrubber which indicated that the newly installed scrubber is removing more than 98% of the fluorides released from the phosphate rock and that the gross amount of fluorides actually emitted into the atmosphere is substantially less than seven pounds per hour when gross production rate is approximately 70 tons per day; that the evidence adduced indicates that the operation of defendant's plant will not result in the emission of quantities of fluoride into the atmosphere that will damage hay or grass raised by the plaintiffs and it will not therefore result in damage to plaintiffs' livestock.

CONCLUSIONS OF LAW

1.

The plaintiffs have not suffered irreparable damage in the past which cannot be measured in money damages nor is there evidence that establishes that defendant will cause plaintiffs irreparable damage in the future.

2.

That plaintiffs have an adequate remedy at law.

3.
That the grounds at present have not been established that would justify this
Court in issuing an injunction terminating defendant's operation at Garrison,
Montana.

It is ordered, that Counsel for defendant will prepare and submit appropriate
Judgment.
Dated this 11th day of May, 1966.

W. W. LESSLEY,

District Judge. Senator METCALF. Incidentally, the counsel for the plaintiffs, one of the counsel for the plaintiff's, in this case, is our newly appointed U.S. district judge for the State of Montana. In his hearing before the Judiciary Committee he pointed out that this was the most interesting and the most significant case that he had tried in all his career.

Senator Muskie. There is nothing of record to indicate what arguments or what considerations motivated the judge to issue his decision?

Senator METCALF. That-in this case Garrison is a small town of a couple hundred population. Cattle die, grass withers, people got so tired of having this pollution in the air that they sought counsel and sued and have substantial damages in the Montana District Court, Montana District Court is, of course, a court of record but the trial court does not issue an opinion as supreme courts do. This case will probably go to the U.S. Supreme Court. It should not, however, be necessary for citizens to incur costly, Lengthy litigation in order to have basic protection of their and their children's health and the community's economy:

In 1965 members of the State legislature from the Missoula area became sufficiently concerned with the problem that they, on a non

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