Thirst for justice 

Suit against Plum Creek moves forward

After five years fighting claims that it polluted air and drinking water near its Columbia Falls manufacturing plant with formaldehyde, the Plum Creek Timber Co. has recently settled with 28 out of 32 plaintiffs involved in a lawsuit against the company. However, four complainants remain unappeased, and earlier this month Flathead County District Judge Ted Lympus set a September 22 trial date to hear the case.

According to court documents filed by the plaintiffs, several Columbia Falls residents began reporting health problems such as breathing difficulty, blood in their urine, and severe headaches after moving into homes near the plywood plant in the late 1990s. In 2002, one of them, Kathryn Price, had her well checked by the Montana Department of Environmental Quality (DEQ). The results came back showing formaldehyde in her water.

After that, other neighbors had the state agency test their water, and the DEQ found two more wells near the Plum Creek plant contaminated by formaldehyde. Experts later hired by the plaintiffs allegedly found formaldehyde in the drinking water and in the air around other nearby homes.

The Environmental Protection Agency warns that formaldehyde exposure can cause burning sensations in the eyes and throat, create nausea and trigger asthma. It has also been shown to cause cancer in animals and may cause cancer in humans.

Plum Creek denied the presence of formaldehyde in the air and in most of the wells, saying the testing “did not follow acceptable sampling methods and procedures.” The company acknowledged the presence of formaldehyde in the wells of Price and plaintiffs Jon and Angela Lemburg, but denied the properties of other plaintiffs had been affected.

For at least 40 years, Plum Creek has collected untreated wastewater containing formaldehyde in unlined ponds on its Columbia Falls property. But the company claims the type of formaldehyde present in the wells did not match the type they were using. It also argues that even if the formaldehyde came from their plant, it fell within the limits of its ground water pollution control permit from the DEQ.

“All activities were lawful and authorized by groundwater discharge and air quality permits,” court documents filed by Plum Creek’s lawyers state. “DEQ issued these permits with knowledge of the nature of PC’s operations and use of formaldehyde. Because DEQ authorized PC’s discharge of wastewater and air particulate, any injury caused by such discharge was not foreseeable.”

But even if Plum Creek had DEQ’s blessing, that’s no excuse, lawyers for the plaintiffs say. “The State of Montana has no authority to authorize the invasion of the plaintiffs’ rights to a clean and healthful environment, clean drinking water, and clean air, and the state made no representation to PC that it was granting that right,” they argue.

DEQ never required Plum Creek to monitor for formaldehyde, but according to DEQ environmental specialist Lou Volpe, a new draft of Plum Creek’s wastewater permit that requires formaldehyde monitoring will be presented for public comment this spring.

Bogged down in a legal tug-of-war between expert witnesses wrangling about where the formaldehyde came from and whether it caused the plaintiffs’ illnesses, the case crawled along until this summer, when the Montana Supreme Court issued a ruling in a similar case pitting the Sunburst School District against Texaco, Inc.

The school district, along with others in Sunburst, a small town about 25 miles Northeast of Cutbank, claimed Texaco polluted 19 acres under the town with contaminants from a leaky gasoline pipe at its since-shuttered Sunburst Works Refinery. In that case, the state Supreme Court upheld a $16 million judgment in favor of the school district. Within weeks, Plum Creek and many of the complainants in Columbia Falls reached confidential settlements.

Plum Creek communication director Kathy Budinick says the company nevertheless believes “the case has no merit.” Attorneys for the plaintiffs declined to speak on the record with the Independent. Karl Englund, a Missoula lawyer who filed an amicus brief in the Sunburst case on behalf of the Montana Trial Lawyers Association, says the Supreme Court ruling might have affected the Plum Creek case.

Englund explains that before the high court decided the Sunburst case, it was unclear whether polluters were legally required to reimburse for the value of the property contaminated, or for the cost of the cleanup. The Sunburst ruling set the cost of cleanup as the appropriate measure.

“If you look at a piece of light industrial property near a factory in Columbia Falls, that isn’t particularly valuable property, and so, if you were only talking about damages to those people as to the diminution in [property] value, it’s not going to be very much,” says Englund.

By forcing Texaco to foot the bill for cleanup costs, the Sunburst ruling raised the stakes for Plum Creek, Englund says, and that might have encouraged the company to settle.

“If you’ve got a situation where the plume [of formaldehyde] is there, and it didn’t come from anyplace else…your liability is established,” Englund says. “[If] it came from Plum Creek and ended up on these people’s property, it’s Plum Creek’s responsibility to clean it up and compensate these people adequately. And once you’ve got all that established, you might as well settle the case.”

The four remaining plaintiffs seek unspecified compensatory and punitive damages.
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