The opinion of the court was delivered by: BOLDT
Plaintiffs in the Arvidson case operate fourteen farms in Clark County, Washington. Their complaint filed in December, 1950 seeks damages and injunctive relief against defendant because of alleged damage to lands and cattle claimed to have been caused by fluorides discharged from defendant's aluminum plant at Troutdale, Oregon. The Whiteaker complaint was filed in November, 1952 by plaintiffs operating four farms in Cowlitz County, Washington seeking the same relief under similar allegations relating to the operation of defendant's aluminum plant at Longview, Washington. The cases consolidated for trial involve generally identical questions of law and fact. Seventy five witnesses testified and 342 exhibits were admitted in evidence. The court visited every farm involved, saw many of the cattle and inspected both aluminum plants with particular attention to their fume control systems. Prior to the trial, on motion and after full hearing, the applicable statute of limitations was determined by the court. Extensive briefs on the liability issues, together with a transcript of 2,500 pages, were submitted. Following the argument on liability the court indicated orally and at some length its then view of the controlling facts, reserving final decision on all points for written opinion.
A detailed analysis of the evidence would greatly lengthen this opinion and would not serve any useful purpose. The evidence was closely followed as it was presented, copious notes taken and at the conclusion of the evidence the court made a memorandum summarizing its impression of each witness and the weight and value to be given to his testimony. The facts as now found are based on extended study and consideration of the entire record, which will be summarized largely in general terms.
The Troutdale plant was constructed for the United States in 1941-1942 by Aluminum Company of America and operated by that company from May, 1942 to September, 1945 when operations were shut down. Defendant commenced operation of the plant under a lease in September, 1946 and with various short interruptions has continued the operation ever since. The plant was purchased from the government and deeded to defendant in June, 1950. The Longview plant was constructed by defendant and commenced operation in 1941. With various shutdowns defendant has operated the plant to the present time. In both plants aluminum is produced by processes which unavoidably cause gases, fumes and airborne particulates to be formed, some part of which are discharged into the atmosphere from the plant stacks. The effluence contains fluorides in some form and amount which eventually may be deposited on lands within a radius of ten miles or more of the plant, but the course, quantity and distribution thereof cannot be directly observed or known. Fluorides of some of the types escaping from the plants, if ingested in excessive quantities, are capable of causing damage to cattle.
Prior to defendant's first operation of the Troutdale plant in 1946 substantial improvements in the fume control system were installed at an expense of nearly $ 300,000. At the same plant defendant, at a cost of over two million dollars, completed installation in November, 1950 of an elaborate fume control system said to be as advanced and efficient as presently exists in the aluminum industry. From time to time various improvements in the fume control system at the Longview plant have been installed, the latest in 1949. Whether the measures taken by defendant to minimize the escape of fluorides from its plants are the maximum possible consistent with practical operating requirements is yet to be determined, but apparently American industry has not yet developed anything better. The record shows that the United States has a very important interest in the continued operation of these plants for their large scale production of aluminum essential to national defense. Because thereof the government has contractual obligations to defendant concerning claims of the character presented in these cases and for reacquisition of the Troutdale plant in the event operation thereof be enjoined. The conclusions reached by the court as to the facts and law controlling of these particular cases make it unnecessary to decide defendant's contention that because of the commitments referred to the United States is a necessary party in the Arvidson case, but the circumstances just stated indicate the lawful and important character of defendant's operations. For the same reason, consideration of defendant's contentions as to the effect of the releases executed by plaintiffs is not required.
In a number of cases previously heard in this and other courts in this area awards for fluorine damage resulting from operation of the Troutdale and Longview plants have been allowed, but every such case involved periods when little, if any, fume control measures were taken and before the installation of the later of the fume control improvements referred to.
Plaintiffs' farms are located at various distances up to seven miles from defendant's plants. During various periods up to several years prior to the filing of the complaints plaintiffs grazed dairy and beef cattle on their farms. Most of the cattle claimed to have been damaged were on the farms the whole of a two-year period prior to commencement of the actions.
Plaintiffs had the burden of establishing by a preponderance of the evidence that the market value of their farms was depreciated and/or that the physical condition and milk producing capacity of their cattle were damaged by fluorides emanating from defendant's plants. Extensive evidence was introduced for such purpose. Defendant's evidence, equally extensive, was to the effect that no depreciation in market value of plaintiffs' farms had occurred and that the maximum possible ingestion of fluorine by plaintiffs' cattle, whether attributable to defendant's plants or otherwise, was well within the amount cattle can take without damage either as to physical condition or milk producing capacity. Plaintiffs' veterinarians testified that plaintiffs' cattle had and were suffering from various conditions ascribed to fluorine; and dairy records purporting to show a loss in milk production were presented. Veterinarians engaged by defendant flatly denied that the physical defects in plaintiffs' cattle were due to fluorine and ascribed them, as well as any apparent decline in milk production, to poor husbandry and other causes and conditions unrelated to fluorine.
All of the plaintiffs testified to personal observations of physical ailments and milk production performance of their cattle. Plaintiffs may have been sincere in believing that all of the ills of their cattle and all of the unsatisfactory conditions in their dairy operations were due to fluorine damage; however, rarely did a plaintiff voluntarily or readily acknowledge any cattle ailment, damage or unsatisfactory condition as being due to any other cause, no matter how apparent it might be. On the whole, the court was not favorably impressed with the personal testimony of plaintiffs. Almost every plaintiff on cross examination was badly discredited in various respects but primarily by (a) testimony at the trial directly contrary to testimony given by pretrial deposition; (b) reluctant admission of conditions and causes unrelated to fluorine accounting in many instances for the damage or condition complained of; (c) admission of substantial increases in income from dairy products during the years complained of as contrasted to earlier periods when fluoride effluence was as much or greater; and (d) the testimony of some plaintiffs in the Arvidson case that no injurious effects or damage were observed from 1942 to 1945 during the period Alcoa was operating the Troutdale plant without the fume control improvements installed by defendant when fluoride effluence must have been very much greater than during the period complained of. It would appear from the testimony last referred to that the cattle injury and loss of milk production complained of were either not due in any material degree to fluorine or were the result of an accumulation of fluorine deposits in forage over a period including several years prior to the limitation period. In this connection it should be noted that the experts produced by plaintiffs testified that fluorine deposits on forage dissipate rapidly and do not accumulate over any great length of time, particularly in areas subject to frequent rainfall.
Each of the veterinarians examined all of the dairy cattle in plaintiffs' herds and cattle urine was tested for fluorine by defendant's veterinarians at various intervals during the period in question. Plaintiffs' veterinarians found a variety of physical conditions in the cattle which they considered evidence of fluorine ingestion and damage resulting therefrom. Defendant's veterinarians accounted for many of the ailments and defects referred to by ascribing them to other causes and categorically were of the opinion that none of the plaintiffs' cattle had suffered injury or damage in any respect by reason of fluorine ingestion, testifying that the urine analysis supported such opinion. The court was favorably impressed with the ability, integrity and thoroughness of defendant's veterinarians and, to say the least, is of the opinion that there is no preponderance in favor of plaintiffs in the evidence of the veterinarians.
Another phase of the evidence was concerned with studies of the quantity, character and distribution of fluoride effluence from defendant's plants. Plaintiffs' evidence indicated a greater quantity and wider distribution of effluence than the evidence offered by defendant; however, the range of difference between the estimates does not appear to be particularly significant in view of the low quantity at maximum of escaping fluorides distributed over a large area. This is indicated by the testimony of plaintiffs' witness, Dr. Cadwell, who testified that at the rate of fluoride escape estimated by plaintiffs' witness, Dr. Schulein, about 1/2 pound per acre per year would be deposited at two miles from a plant; 2/10ths to 3/10ths of a pound per acre per year at four miles from a plant; and 1/10th of a pound per acre per year at eight miles from a plant. Dr. Cadwell testified that a half pound of particulates would be about the size of his fist in volume.
A very extensive program for sampling forage and testing it for fluorine content has been conducted over a period of years in a wide area surrounding defendant's plants. The work has been done by state and college scientists aided and assisted by defendant and others. The results of this work are shown in the agreed facts stated in the pretrial orders and in the evidence. There is little, if any, dispute as to the samples taken and their fluorine content as shown by laboratory measurement, but the interpretation of the data is in conflict. The conflict largely hinges on what part of the fluorine found in the samples is to be considered within the limit naturally and normally found in vegetation and what part is to be charged to deposits presumably emanating from defendant's plants, as to which a great many variable factors, some involving scientific questions not yet fully settled, must be considered. A fair inference from a full consideration of the evidence on this phase of the case is that some part of the fluorine found in the forage at points within the vicinity of plaintiffs' farms during the period in question in these cases is attributable to fluorides escaping from defendant's plants, but the amount and character thereof is a matter of speculation and cannot be determined with any degree of certainty. In all probability some areas in the near vicinity of the plants receive deposits of particulates or solids in a minute and powdery form so fine as not to be observable even by scientific methods. There is no evidence in the record indicating that direct observation has been made of solid deposits on plaintiffs' farms or at any other place as distant from the plants as the nearest of plaintiffs' farms.
A further factor complicating the matter is the necessity of using test data from samples gathered at more or less infrequent intervals at scattered points and attempting to draw inferences from averages of such data as to particular properties not precisely at a sampling station. It is apparent from the data itself that rather wide variations occur geographically, climatically and by season. When all of these matters are considered it can be seen that any specific finding of fluorine content in forage on the particular property of any plaintiff must very largely if not wholly be a matter of speculation and conjecture.
The next branch of the evidence to be considered has to do with the testimony given by the several scientists on both sides of the case concerning the quantity of fluorine necessary to produce toxic effects in cattle. Much scientific research has been devoted to this subject and is continuing. Elaborate controlled experiments have been conducted in this field over a period of years but ultimate conclusions generally accepted by scientists have not yet been reached. It may well be that individual peculiarities of cattle and the area in which they are grazed will prevent any absolute scientific finding which will be ...