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TOM R. PHILLIPS, JR. v. DAVIS TIMBER COMPANY

MAY 01, 1985

TOM R. PHILLIPS, JR.
v.
DAVIS TIMBER COMPANY, INC.



BEFORE ROY NOBLE LEE, HAWKINS and PRATHER

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

Dr. Tom Rhea Phillips, Jr. filed suit against Davis Timber Company, Inc., (Davis) to enjoin it from polluting Phillips' lake and for damages as a result of pollution. After hearing the evidence, which consists of sixteen (16) volumes, the lower court entered judgment for Davis and dismissed the bill of complaint. Phillips appeals and assigns seven (7) errors in the trial below, but we discuss only three (3) assignments, which are dispositive of the appeal:

(1) The lower court erred in finding that at least on two occasions there had been a discharge of pentachlorophenol and disregarded the doctrine of nuisance.

 (2) The lower court erred and was manifestly wrong in finding for the appellee when both the appellant's and appellee's sediment samples reflected the presence of dioxins in the lake of appellant.

 (3) The weight of evidence was contrary to the findings of the lower court.

 Facts

 Appellant constructed a lake about one mile north of Hattiesburg in 1964. The lake was made by damming the open ends of an abandoned horseshoe on the Bowie River and by letting the riverbed fill with waters from Mineral Creek, which flowed naturally into the area. Mineral Creek

 originates about three (3) miles south of Phillips' lake, a short distance from Davis. It passes along the eastern border of Davis through Country Club Lake Estates Lake (Country Club Lake), located about one-half (1/2) mile from Davis, then meanders about two and one-half (2-1/2) more miles past a Southeast Mississippi Power Electric Association operation, a bulk plant, under U. S. Highway 49, and eventually into Phillips' lake.

 The Bouie River flows north to south along the eastern border of Phillips' lake. On at least three occasions, the Bouie River has overflowed its banks and inundated Phillips' lake with its waters.

 Davis is a wood treating operation. It takes tree trunks, debarks them when necessary, and pressure treats them with a solution of pentachlorophenol (commonly known as" penta "or PCP), the finished product being a preserved wooden pole. The by-product of each pressure treatment, that portion of the solution not absorbed by the poles, consisting mainly of the penta, oil and water, was funneled off into a holding waste pond.

 The holding pond was about 5 acres in surface area and approximately 16 feet deep. Through one wall of the pond was a 6-inch pipe, capped on the outside, extending into the pond and then turned vertically to a level about 4 feet from the bottom of the pond. This pipe was placed for emergency draining purposes. In the event the pond had to be lowered, the placement of the pipe in this manner would allow removal of the least toxic water, since the most toxic water would be found at the top and bottom layers of the pond.

 After heavy rainfalls in December, 1974, Chuck Davis of Davis, determined that it was better to open the drainpipe and drain some of the pond rather than let the rain cause the top layer of the waste pond to flow over and into Mineral Creek. Davis was unable to recap the drainpipe after it had been opened and the entire pond (except approximately four feet) was drained. Shortly after this occurrence, a fish kill was investigated by the Miss. Air & Water Pollution Control Comm'n (MAWPCC) in Country Club Lake. It was determined that the draining of the holding pond was the cause of the fish kill and charges were brought against Davis, which was fined and ordered to cease further discharge.

 In September, 1975, Dr. Richard Pierce, from the University of Southern Mississippi Institute of Environmental Science, began a study under an Environmental Protection Agency grant on the" fate and effects of pentachlorophenol in

 a fresh-water ecosystem. "This study centered primarily on Country Club Lake.

 On December 28, 1976, the MAWPCC investigated a second fish kill in Country Club Lake. Again, it was determined that Davis was the cause. MAWPCC requested that Davis file for a permit to operate its waste water disposal system, which would necessitate Davis refining its waste water treatment plant. The data from the December 28, 1976, spill was sent to Dr. Pierce who concluded that the fish in Country Club Lake had died from acute PCP poisoning.

 Between January 26, 1977, and April, 1977, Davis applied for a permit from the MAWPCC, and after submitting an engineering report recommending a forced spray evaporation from the waste water treatment pond, a permit was issued for" no discharge. "

 On February 2, 1978, MAWPCC investigated another fish kill in Country Club Lake. Again, Davis was determined to be the cause and was again fined.

 MAWPCC investigated yet another fish kill in Country Club Lake on January 24, 1979. Also, an investigation was conducted on a fish kill in Phillips' lake. Davis admitted releasing water from the holding pond and was fined.

 In the 12 months which followed, Davis attempted to comply with orders of the MAWPCC concerning evaporation of waste water from its treatment pond. No solution seemed to work, so Davis began hauling water off to the Hattiesburg City Sewer System. By November, 1980, Davis had filled in its waster water treatment pond, and had implemented a different type of treatment system wherein by-products were reused in the wood treatment process. In January, 1981, MAWPCC received another report that a brown substance had been released from Davis. MAWPCC investigated and found an oil material floating on the creek approximately one-half mile from the plant containing concentrations of oil several ...


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