ELR Citation: ELR 20050
No(s). 77-1212 (D. Kan. Aug 13, 1984)

The court holds that a salt mining operation that has heavily polluted an aquifer used for domestic water supply and for irrigation is a continuing nuisance. The court holds that the salt plant is primarily a private nuisance, since the rights disturbed by the pollutants released are primarily the rights of these plaintiffs to use and enjoy the property at issue. Nevertheless, there are elements of public nuisance intermingled because the addition of between 150,000 and 325,000 metric tons of salt to the aquifer has wrought substantial damage to the public's interest in a precious natural resource. The plant is a nuisance in fact and not per se because, had the plant been operated in a careful and prudent manner, there would have been no nuisance. Because the defendants own and operate a private abatable nuisance, they are liable for the actual damages flowing from that nuisance. The court holds alternatively that defendants were negligent or worse in the operation of the plant and are, therefore, liable for the actual damages flowing from that negligent behavior. The salt plant is a continuing nuisance, since it continues to emit pollution in legally significant quantities, and therefore gives rise, over and over again, to causes of action to recover for the injuries sustained by the surrounding landowners. The primary injury in this case is to plaintiffs' annual crops, which can only be injured or destroyed in the year in which they grow, so each injury or destruction gives rise to a separate cause of action. Plaintiffs' growing of dryland crops on the affected land constitutes adequate mitigation of their damages. Under a two-year statute of limitations, plaintiffs may recover crop losses occurring up to two years before they brought suit, regardless of when defendants released the pollution leading to the damage. Based on these findings, the court finds defendants liable to the plaintiffs for $3.06 million in temporary damages. The court also finds plaintiffs liable to certain defendants for consequential and trespass damages.

Turning to theissue of punitive damages, the court examines defendants' conduct and finds it both wanton and malicious, and therefore an appropriate subject for punitive damages. The president of the polluting company knew of the dangers to plaintiffs both of the accidental spills—which he did nothing to prevent because of indifference—and of intentional acts of pollution. The court holds the corporate defendants liable for punitive damages for the president's acts because it authorized his tortious acts, recklessly retained him despite his unfitness to manage the plant, ratified his acts of pollution, and employed him in a managerial capacity, in the scope of which the acts of pollution were committed. After reviewing the grievousness of defendants' conduct, the ineffectiveness of past fines for pollution law violations, and the vastness of corporate defendants' assets, the court sets punitive damages at $10 million.

The court concludes that its equitable jurisdiction is properly invoked, and proceeds to fashion an equitable remedy. It first orders defendants to remove trespassing brine pipelines from one plaintiff's land. Although the court finds that it has insufficient knowledge to order any particular cleanup action, it orders defendants to install a system of monitor wells to evaluate the pollution damage and the cleanup requirements. The court holds the punitive damage award in abeyance, retains jurisdiction and notes that it may reactivate the punitive damage award whenever it appears that defendants are not pursuing remedial action in good faith or whenever it appears that cleanup is impossible.

The court holds that if on appeal the statute of limitations is deemed to run from the release of the pollutants, there are ample equitable reasons for estopping defendants from relying on the statute. The court declares its judgments on liability and actual damages to be final to allow defendants to pursue an appeal concurrently with the ordered remedial actions.

Counsel for Plaintiffs
Deborah Carney, Lee Turner
Turner & Boisseau
3900 Broadway, Great Bend KS 67530
(316) 792-2441

Counsel for Defendants
Thomas D. Kitch, Ron Campbell
Fleeson, Gooing, Coulson & Kitch
P.O. Box 997, Wichita KS 67201
(316) 267-7361