Cleaning the Air in Missoula, MT
The Hoerner-Waldorf litigation

The first action in the federal courts seeking to impose state-of-the-art pollution control technology on an industrial facility was brought against the Hoerner Waldorf pulp and paper mill at Frenchtown, Montana. This action was filed in 1968 in the United States District Court for Montana at Missoula.

The need for developing the “state of the art” cause of action in air pollution litigation was based on the difficulty of sustaining the burden of proving any damage to the community or to any individuals therein from any particular source of air pollution. If we could establish that the People of the United States are entitled, as a matter of right, to the cleanest air and the cleanest water that the existing state of the art in pollution control applicable to an industry can provide, then the burden of the plaintiff consists of demonstrating that the defendant is not operating at the level of the existing state of the art. If, on the other hand, the plaintiff must also establish damage causally related to a particular air pollutant or mixture of pollutants and show that a particular air polluting operation is the proximate cause of such pollution, the burden generally cannot be sustained with existing scientific information. For this reason Yannacone directed all his efforts to establishing that the defendant owes the community the cleanest air and the cleanest water that the existing state of the art in pollution control technology applicable to its industry can provide.

In the Missoula Regional Airshed there was no substantial evidence of direct personal injury to any individual or group of individuals for which the Hoerner-Waldorf Pulp & Paper Mill might be considered the proximate cause, but that there was considerable evidence that the quality of the air and consequently the quality of life for those living in the region is in some way different—diminished in quality—from the region that was outside the pall of the contamination of the atmosphere attributable to the paper mill.

The scientists supporting the litigation had to determine the extent of the damage sustained by the plants, animals and human beings dependent upon the regional ecological systems.

After the Regional Ecological System was defined and described, it was necessary to consider the effect of the air emissions from the paper mill on the Regional Environmental System and its individual elements, particularly those relating to the welfare of the local residents.

The class action for declaratory judgment and equitable relief charged the Hoerner-Waldord kraft paper mill with contaminating the entire Bitterroot Valley regional airshed with noxious volatile sulfur compounds, particularly hydrogen sulfide, the odor of rotten eggs, and a number of mercaptans, the principal volatile components of skunk musk.

At the time the lawsuit was filed, there was no information about the source of the unremitting stench which permeated the entire Valley and made study at the University of Montana uninviting to many students and created significant difficulties in recruiting faculty as well.

It seemed that the source of the volatile sulfur compounds was the Kraft paper mill and the lawsuit specifically targeted hydrogen sulfide and the mercaptans because there were no other possible sources of these reduced sulfur compounds in the Valley.

The deposition of Roy Countryman, the manager of the mill, and other discovery also contributed to establishing a foundation for the case and the survival of the cause of action through the knee-jerk motions to dismiss until eventually the Company was forced to invest $15 million and modernize their plant.