Fluoride Action Network

Eastalco Aluminum Sued Over Fluoride Emissions

Source: The Washington Post | Washington Post Staff Writer
Posted on November 20th, 1978
Location: United States, Maryland
Industry type: Aluminum Industry

Wearing quilted jackets, string ties and suspenders, the dairy farmers who sat in a Frederick County courtroom last week are not anyone’s image of political activists. But they are part of a new group of environmentalists: those who claim that industrial pollution damages their livelihoods as well as the quality of their lives.

The dairy farmers, are suing an aluminum smelter, Eastalco, for $4.8 million, charging that fluoride gas emissions from the processing plant – located near their farms in southern Frederick County – have harmed their dairy cattle, reduced milk production, and damaged trees and crops on their farms.

The farmers and ranchers who have become caught up in environmental fights in Maryland, Virginia and across the nation are not “any kind of nutty fruit and feathers people,” one federal official noted. They are taking environmental battles to court for a simple and compelling reason – economic self-interest. “It’s a very interesting trend – different people looking to enforce environmental law for different reasons,” said Joan Z. Bernstein, chief counsel to the Environmental Protection Agency. “It’s not because they’re do-gooders, but people who have been harmed.”

In Western Maryland and West Virginia, Christmas tree plantation owners sued a power plant and a paper mill for pollution-related damages to trees, winning one case, losing one and reaching settlements in others. Along the border between Virginia and North Carolina, farmers were part of a coliation that prevented the proposed dammning of the New River for a hydroelectric project.

In Michigan, the Michigan Chemical Co. and Michigan Farm Bureau Service has paid almost $40 million to settle nearly 700 claims airising from the 1973 contamination of cattle feed with a toxic fire retardant, PBB (polybrominated biphenyl). In Fernwood, Wash., cattlemen sued the Intalco Aluminum Corporation, a sister company to the Eastalco plant in Frederick, winning three lawsuits and settling 16 others.

In addition to filing damage suits against industrial firms, farmers and ranchers also have been involved in environmental issues in other ways. For instance, the National Farmers Union, the National Farmers Organization, the Grange, the National Association of Corn Growers and the National Association of Wheat Growers all studied strip mining legislation to make sure it included some protection for agricultural lands.

But it is by filing suits for damages that farmers and ranchers appear to play a particularly effective role in environmental battles.

“Whenever you have private enforcement of public rights it always results in an increase in control,” said Bernstein. “Vulnerability to large-scale liability makes people behave in a certain way – mainly, very carefully.”

“There are clearly some very interesting coalition types of interests emerging,” said David Weiman, a former lobbyist for the National Farmers Union, who researches agricultural issues. Weiman and representatives of the Environmental Policy Center, which has worked with farmers and ranchers on environmental issues, predicted more cooperation between agriculturalists and environmentalists.

“A lot of people are always asking us – is the environmental community as strong as it was?” said Environmental Policy Center director Louise Dunlap, adding, “labels are less important. What’s happening is more and more economic interests are getting involved in environmental issues.”

During its opening week, the trial in Frederick has been replete with references to other groups of farmers and ranchers challenging other industrial interest either by opposing industry attempts to locate in farming communities or by filing lawsuits for damages.

It also has become clear during the trial that something of a small legal industry has grown up around these types of cases, just as malpractice cases have produced specialists in that area. A plant pathologist who testified referred to his previous testimony elsewhere around the country in similar suits.

The attorneys representing the farmers are from a Portland, Ore., law firm that also represented cattle men suing the Washington firm. Both the botanist who served as an expert witness and attorneys for Eastalco were involved in the Western Maryland Christmas tree plantation litigation.

Eastalco began efforts to locate in Frederick County near Buckeystown in 1967, and opened its plant in 1970, despite some citizen opposition. The smelter occupies 350 acres of a 1,900-acre tract, part of which is farmed by the corporation.

“Practically every year Eastalco leads the county in corn yield per acre,” the company’s attorney Benjamin Rosenberg said at the outset of the trial.

Eastalco chose Frederick County as a location for a variety of reasons, including its nearness to the port of Baltimore and to a relatively low-priced source of electricity, according to testimony. Aluminum processing is an energy-intensive process that consumes huge amounts of electricity.

The firm which employs 1,025 workers in Federick County, is a subsidiary of a French corporation, Pechiney Ugine Kuhlmann Group (which attorneys for the farmers characterized as the French equivalent of Alcoa) and Alumax Inc. The Frederick smelter produces about 175,000 tons of aluminum a year.

The three farm families – Charles and Lois Noffsinger, Austin and Norma Putman Sr. and their son and daughter-in-law, and William H. Zimmerman and his son – operate dairy farms bordering the smelter.

They are dairy farmers, part of the Capitol Milk Producers Cooperative that provides milk for distribution through the High’s dairy stores. Zimmerman, the son of a German immigrant, was born and grew up in Frederick County and has been farming at his present location since 1947. With his son, he operates about 400 acres.

The farmers claim that flouride emissions have damaged the teeth and joints of their cattle, reduced milk production and made the cattle more vulnerable to disease. They also blame flouride emissions for damages to trees on their properties.

The first week of testimony involved various expert witnesses called by the farmers who testified to what they said were the effects of emissions from the aluminum processing plant on the farmers’ cattle and properties. During cross-examination, attorneys for Eastalco have tried to cast doubt on the witnesses’ expertise.

The trial is expected to last another two to four weeks.


The Washington Post

December 2, 1978

Eastalco Is Absolved Of Punitive Damages

By Martha M. Hamilton
Washington Post Staff Writer

FREDERICK, Md., Dec. 1, 1978 – A Circuit Court judge ruled here today that three Frederick County farm families suing a nearby aluminum smelter for damages from air pollution may not recover $3.2 million in punitive damages they had sought.

Judge Samuel W. Barrick, ruling on a motion by the defendant, Eastalco Aluminum, said that the jury in the air pollution case may consider no claim for punitive damages because there had been no showing of malice in the aliminum company’s actions.

The families’ claim for punitive damages had amounted to two-thirds of the total $4.8 million originally at stake in the trial. Still at issue is $1.6 million in actual damages that the farm families charge were caused by fluoride gas emissions. Members of the families testified during the three week trial that smoke from the smelter rolled across their farms, damaging dairy cattle, trees and crops and causing the farmers to gasp for breath and wipe tears from their eyes.

Eastalco began its defense against the charges by the farmers yesterday with two experts — a biochemist who has done extensive studies of the effects of fluoride on cattle and a professor of veterinary medicine who specializes in toxicology. Both men said that they had examined the three dairy herds in question and found that the cows’ milk production had not suffered as a result of fluoride emissions.

Dr. John W. Suttie, a professor of biochemistry at the University of Wisconsin, told the jury “My opinion is that the ability to produce milk by these animals has not been impaired,” nor had their ability to reproduce, he said.

Suttie, who said about 1 1/2 per cent of his research funding came from Eastalco, which is part of an industry group that finances fluoride research, said, however, that the cattle he examined showed damage to their teeth from fluoride.

The extent of the damage to the cattle’s teeth is a major issue in the trial because serious damage may effect the animal’s feeding habits and subsequent milk production.

Arguments over whether the farm families would be able to claim punitive damages focused entirely on whether there had to be a demonstration that Eastalco had acted maliciously.

Neither side contended that Eastalco had been malicious. “We have no proof that Eastalco actually intended to injure these plaintiffs,” said their attorney Arden E. Shenker on Thursday. Shenker argued, though, that the company’s failure to restrict emissions, knowing that emissions might cause damage, was grounds for punitive damages.

“Maryland does not favor punitive damages and they are only permitted within narrow limits,” said the judge. “They are not awarded as means of compensation to the plaintiffs. They are assessed for reasons of public policy or in the interest of society,” Barrick said.


The Washington Post

December 8, 1978

Jury Gets $1 Million Suit Against Aluminum Plant

By Martha M. Hamilton
Washington Post Staff Writer

The claims of three Frederick County farm families who are suing a nearby aluminum smelter for $1.6 million in damages went to the jury yesterday after nearly four weeks of testimony and arguments over the effects of fluoride gas emissions on the families’ dairy farms.

The Circuit Court jury left the courtroom about 12:40 p.m. carrying armloads of evidence including stacks of meteorological reports and photos of cows’ teeth to help them determine whether Eastalco Aluminum is liable for alleged damages to dairy catle, crops and ornamental plants and to the families themselves.

After nine hours of deliberation, the jury retired for the night, planning to resume this morning. The trial ended with nearly seven hours of closing arguments that ranged from statistical analyses to biblical exhortations.

“You ask how you have despised my name — by putting polluted food on my altar,” the farm families’ attorney, Arden E. Shenker, quoted from the book of Malachi. Shenker said he came across the Bible verse in his leisure reading the night before.

The farm families’ homes are “their altars — which need not be sacrificed at the behest of Eastalco,” he said.

Earlier, however, Eastalco’s attorney, Benjamin Rosenberg, told the jury that the evidence in the trial was “overwhelmingly clear and overwnelmingly compelling” that Eastalco has done no economic damage to the farm families.

In his closing argument, Rosenberg noted that relatively high concentrations of fluorides had been present in cattle feed and forage on the farms even before the aluminum plant opened in 1970.

The company’s attorney also pointed out that the three families had pulled out of Eastalco’s program to monitor fluoride emissions. “They no longer participate in the monitoring program because their lawyer told them not to,” he argued.

Shenker, in his closing argument, described at length how the three farm families had moved to their farms and worked to make them what they are today. And then he spoke of how these men and women were affected by the plant’s fluoride emissions.

Shenker said that one farmer, William B. Zimmerman Jr., had been forced off his tractor and had taken refuge in his house because of the pollution from the factory. Norma Putnam, on another farm, often stayed inside to avoid what she believed were harmful consequences of the emissions.

“Why,” asked Shenker, “should she be locked in her house as a prisoner of what is out there?”

Shenker said the evidence in the case showed how the fluoride harmed the many cows on the farms — in some cases making them lame, and affecting their ability to produce milk and offspring. Because Eastalco officials allowed this to occur, he said, the families are entitled to damages.


The Washington Post

December 9, 1978

Jury Awards 3 Md. Farm Families $65,500 in Eastalco Pollution Case

By Martha M. Hamilton
Washington Post Staff Writer

A Frederick County Circuit jury yesterday ordered Eastalco Aluminum to pay $65,500 in damages to three local farm families whose dairy cattle were harmed by the plant’s fluoride emissions.

In a decision described as a compromise by one of the jurors, the panel declined, however, to award the farm families any damages for what they claimed was the personal discomfort and annoyance theyhad suffered from Eastalco’s emissions of fluoride and other pollutants.

The jury also rejected a claim that the aluminium smelter had substantially interfered with the families’ abilities to operate their farms.

“We’re relieved that they favored us and believed enough in the fact that there were damages” to make an award, said Mary Ann Putman, a member of one of the families that sued Eastalco. The company opened a plant in the argicultural valley in 1970. Both sides claimed victory in the case — the farm families because they said that the jury “believed that Eastalco did what we said they did” and the company because of the reduced size and scope of the award.

Originally the families had asked for $1.6 million in compensation and $3.2 million in punitive damages. Judge Samuel W. Barrock had ruled earlier in the trial, however, that there could be no punitive damages because there had been no demonstration that Eastalco acted with malice.

The case, in which the farm families charged that fluoride emissions from the aluminum smelter had damaged their dairy herds and reduced milk production, was one of a number of similar legal acions across the nation in recent years pitting the economic interests of farmers and ranchers against industry in disputes over pollution.

Because farmers and ranchers can claim damages and make pollution costly, theses suits have been an effective new type of environmental action, according to federal officials and environmentalists.

The families “feel vindicated,” said their attorney Arden E. Shenker after the verdict yesterday. “They weren’t really nuts after all. The cows were getting damaged,” he said.

The president of Eastalco, however, interpreted the verdict differently. “Our interpretation is that the jury’s opinion totally absolved the company of any wrongdoing,” said Harvey Armintrout. “We are and can and will continue to live and operate in the state of Maryland, Frederick County, without harm to our neighbors,” he said.

Armintrout said he believed the verdict reflected that the jury felt there should be some compensation for cosmetic damages to cows teeth which he blamed on circumstances before new emissions control equipment was installed in 1975. He said that he believed that the jury had accepted Eastalco’s contention that there had been no economic damage to the cattle.

During the panel’s 13 hours of deliberations, the jury sent a question to the judge asking whether the claim for damage to the cattle herds and their milk production could be split into two parts. The answer was that there could be only one award but that it could cover other types of damage in addition to reduced milk production.

Eastalco’s attorney, Benjamin Rosenberg, had contended in his closing arguments, with long statistical analyses, that milk production on at least two of the farms had improved since Eastalco opened.

During the trial, which lasted nearly four weeks, the jury heard from more than 30 witnesses and saw over 200 exhibits. Much of the testimony was from expert witnesses who reached opposing scientific conclusions. Much of the time the jury spent deliberating over the case was spent in arguing over that testimony, said a juror.

In addition, the jury looked over all of the exhibits again, including photos of cows teeth and stacks of meteorological reports. “I never saw a cow’s tooth before, and I never want to see one,” said the juror.

The farm families had claimed that damage to the cows’ teeth was serious enough to cause feeding problems, affected the cattle’s ability to produce milk, so much of the testimony revolved around the extent of that damage.

The farmers had also claimed that fluoride emissions had made their cows lame and had reduced the cattle’s marketability. In addition, members of the farm families testified that emissions from the aluminum plant had sometimes left family members themselves gasping for breath and wiping tears from their eyes.

“Whether you are right or wrong, nobody can say,” Judge Barrick told the jury after the verdict was presented. “The job of justice is not a mathematical certainty,” he said.

At the end of the trial Rosenberg renewed a motion that the families were not entitled to claim damages for harm to their cattle. If Barrick were to rule in favor of the motion, it would nullify yesterday’s verdict. Barrick said he would rule at an unspecified date in the future.


The Washington Post

May 24, 1983

LANDFILL BATTLE; Aluminum Firm Gets Qualified Approval To Dump Wastes in Latest Dispute With Frederick Residents

By Eugene L. Meyer
Washington Post Staff Writer

FREDERICK, Md., May 23, 1983 – Pascal Renn, a 71-year-old dairy farmer, sold 500 prime agricultural acres 15 years ago to an aluminum smelting firm, thinking it would be a boon to his native county. Now, he says, he prays “every night I can do something to protect the community from this selfish company.”

Renn’s current concern is a proposed landfill in which the aluminum company, Eastalco, wants to dump brick that is laced with fluoride and cyanide residues from the smelting process. With citizens charging coverup, and the company hinting jobs are at stake, the battle over the landfill has been raging for months in this county of rolling dairy farms, Appalachian foothills and town house developments inhabited by Washington commuters. It is the latest in a series of disputes over the years between Frederick County’s largest private employer and its rural neighbors. In 1978, three families were awarded $65,000 in litigation arising from air pollution that they charged was poisoning their cows with fluoride gases.

“We want to be good citizens,” Eastalco President Peter Aylen asserted here today. “We intend to fulfil our obligations.”

County officials, who want industry but not controversy, have barred Eastalco wastes from the public county landfill, but say it’s up to the state whether the company can operate its own landfill.

State officials held up approval of the landfill permit after citizens complained about possible effects on the environment and public health. Today, after several weeks of testing and analysis, they gave qualified approval to the company plan, describing as “innocuous” most of the waste the firm wants to dump.

Citizens attending a briefing here were assured that the plastic-lined landfill would contain all waste or, at worst, allow seepage that would contaminate wells no farther than 80 feet from the site, within Eastalco boundaries.

Officials limited their qualified approval to “old” brick that once coated the electrolysis cells where the aluminum smelting takes place. The material has been sitting uncovered on concrete pads for as long as eight years. The approval for now excludes fresh bricks and carbon residues, which also coat the cells or “pots,” and sludges from settling ponds into which the chemicals now wash.

“We can’t sit back in our aluminum lawnchairs, drinking out of aluminum cans, next to houses with aluminum siding” and refuse to handle the waste, said Ron Nelson, Maryland waste management administrator. The landfill, he said, represents the state of the art, but he refused a citizen’s request to provide a “signed guarantee” that it would never leak.

Typical of toxic waste disputes nationwide, the Eastalco controversy is complicated by a lack of definitive answers to questions about the effects of chemicals and how much exposure humans can take without harm.

Against this backdrop, there is a “general mistrust between citizens, government and industry,” Nelson said. The mistrust bubbled to the surface as Nelson reported the state’s findings in the Eastalco case.

“I just don’t believe them; it’s just a lot of hogwash,” Pascal Renn said after the two-hour presentation. His 84-year-old brother, Austin, also was skeptical. “There’s a lack of confidence in anything Eastalco does in any part of our county, and in the state health department,” he said.

The battle of Eastalco has brought together deeply rooted dairy farmers, such as the Renns, and newcomers such as Christy Carton, who moved here five years ago from Arlington to an old farmhouse on 20 acres three miles south of the plant. Carton, whose husband, Robert, works for the toxics section of the U.S. Environmental Protection Agency, has been spearheading the campaign at home.

She formed Concerned Citizens of Adamstown, which obtained 650 signatures opposing the landfill, and she consulted attorneys and environmental activists elsewhere in Maryland. “I’ve learned a lot about politics,” said Carton, who came here, she says, to escape urban ills.

She learned of the landfill plans in January, almost by accident, and, all sides agree, was instrumental in forcing the state to take another look. “I doubt we would have made as full a report if the citizens hadn’t asked some good questions,” Nelson said after today’s briefing.

Nelson was unable, however, to answer all the questions. He could not say that fluoride levels in the waste would not harm humans. Nor could he explain to everyone’s satisfaction why the state hadn’t moved more quickly to analyze the contents of other landfills that Eastalco has operated here for years, without any permit but apparently within the law.

“We’re looking into four or five hundred sites” of all companies around the state, Nelson said. “You have to set your priorities. We’re trying to catch up,” he said.

Admittedly without proof, residents of the Frederick valley, where the 960-employe plant is located, suggest that Eastalco is directly or indirectly responsible for all manner of ailments. Eleven people, it is widely noted, have died from brain tumors, and three children from separate families in the vicinity suffer from bone diseases. Ponies and cows are said to have suffered.

“You go out and talk to the neighbors, you’ll get all kinds of stories from us,” said John Carnochan, Eastalco’s community relations manager and former Frederick County school superintendent. “There’s never been any evidence, but these stories persist in the minds of the people.”


The Washington Post

June 14, 1983

Frederick Plant Awarded Permit For Toxic Wastes

By Eugene L. Meyer
Washington Post Staff Writer

The Maryland health department issued a permit yesterday allowing an aluminum company to dispose of brick laced with cyanide and fluoride residues in a landfill at the plant site in Frederick County.

Residents who had raised concerns about the landfill and its possible effects on their well water said they were pleased with conditions imposed on the Eastalco company in the dumping permit. The state ordered that the bottom of the landfill be raised four feet above what the company had requested, moving it farther away from the underground streams that feed the wells of rural residents in the area a few miles south of Frederick city.

The state also ordered an increase in the slope of the landfill to ensure that toxic chemicals would seep into a collection pond for decontamination treatment.

The permit also bars landfilling of brick waste that contains amounts of cyanide or fluoride thought to be harmful, according to department spokeswoman Linda Smeynie.

The contaminated waste is a byproduct of the process of smelting aluminum, which involves electrolysis.

“Our concerns have been validated,” said Christy Carton, who formed the Concerned Citizens of Adamstown to oppose the dump.

“I’d be supremely happy if there was no landfill, but I feel the state has done probably the most judicious thing limiting the concentration of these components, Carton said.”

Carton criticized the state, however, for allowing the temporary storage of fresh waste on the ground while “old” waste that’s been sitting on outdoor concrete pads for years is placed in the landfill.

“As a temporary measure, it’s going to have to happen,” Smeynie said. “This isn’t a good alternative, but it’s all we had to deal with.”