John Kilkenny

“ Pinpointing the ever increasing problem of air pollution is the great concern of our national and state legislatures as expressed in the Air Pollution Control Act of 1955, 42 U.S.C. 1857-1857g, as supplemented by the Clean Air Act of 1963, and the Oregon legislation to which I have previously referred. ”

“ On the other hand, the plaintiffs called experts, whose testimony was clear and convincing to the effect that the amount of the emitted material could be substantially reduced, or almost eliminated, without an expenditure which would substantially deprive defendant of the use of its property. Frankly stated, there is no good reason why the defendant company, like other companies similarly situated, should not make a reasonable expenditure in the erection of hoods, or like devices, over or around its pots or cells. ”

“ I agree with the expert, that after the installation of the hood, the small amount of gasses which might escape on the introduction of ore or the removal of liquid metal would be inconsequential.
Likewise, the record convinces me of the feasability of the introduction of electrostatic precipitators for the removal of the minute or small particulates which are not removed by the other processes. The multi-cyclone dust collector now used in the plant at The Dalles is efficient in collecting the large or heavy particulates, but is of little value in removing the smaller variety. ”

“ The record in this case is sufficiently broad to be viewed as a suit to abate a nuisance, as well as a suit to enjoin a continuing trespass. For that matter, a continuing trespass could well be a nuisance. The York cases recognize that the deposit of smoke screenings and particulates on the lands of another amounts to a nusiance. The rule of construction 'expressio unius est exclusio alterius', for which defendant contends, is not a rule of law, but is a mere guide in determining intent and such a rule must be harmonized with all other rules of construction. ”

“ If necessary, the cost of installing adequate controls must be passed on to the ultimate consumer. The heavy cost of corrective devices is no reason why plaintiffs should stand by and suffer substantial damage.
DAMAGES TO PLAINTIFFS It is my considered opinion that the evidence on damage to cherries is so conflicting and controversial it would be difficult to hold that the cherry crops were severely damaged by the gasses or particulates emitted from defendant's plant. ”

“ The vertical type, employed by Harvey, has an apron which collects approximately 80% Of these gasses and particulates, but the remaining 20% Escapes from the area where the hoods would be located, mixes with other air in the building and then drifts upward into the water spray controls in the roof. It is conceded that in the production of aluminum there is inevitably a release, from the cells, of some gasses and particulates, including fluorides. ”

“ This system treats approximately 80% Of the fumes released from the cells. The remaining 20% Of the fumes escape into the open building, and rise to the top where they pass into roof monitors located at the top of each of the buildings housing the cells. In the spring of 1962, a system of sprayers and screens were installed in the roof monitor and this system has been operating at full capacity since the beginning of 1963. These sprayers and screens collect a portion of the fluorides reaching the roof monitor. ”

“ The opinion in Wand makes a point of the fact that the company had recently installed a new system for the minimizing of the escape of the gasses, fumes and particulates, at a cost of $ 2,139,185.00, and that there was nothing in the record to show that any further lessening of the escape of such materials was possible. The record before me contains clear and convincing evidence that the defendant has yet to install a hood system over and around the cells, similar to that installed by Reynolds. Defendant can find little comfort in Huber v. ”