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Cartoon courtesy of Greenwatch USA

Chapter 7: Aluminum's Alloys

Manipulative techniques in defense of technology are limitless. Harvey Aluminum Company has refined an ancient one: the lie. The liar can patch up a balky technology faster than an engineer.

Back in the 1960's a judgment was entered against Harvey Aluminum (now Martin Marietta) for fluoride pollution from its plant at The Dalles, Oregon. Shortly after the court brought in the bad news, the company came up with test data proving fluoride emissions had dropped spectacularly from 1,300 pounds a day to around 640 pounds. Lawyers rushed the glad tidings to the Court of Appeals in San Francisco in an unsuccessful attempt to get the lower court's decision upset. Unraveling the mysteries of this technological marvel took some imagination.

Joe Schulein, a teacher of chemical engineering at Oregon State University for 17 years, was convinced Harvey was still putting out at least 1,300 pounds of fluoride per day, despite the lawyers' claims. He decided to investigate by studying the power charts for the two-hour test period on November 11, 1964. The charts record the conversion of alternating power into direct current for use in the production of aluminum. Schulein asked Harvey's Fred Blatt for the charts.

[Blatt] said, "We don't have any power charts." I said, "Of course you have power charts." He said, "We don't keep any power charts, no such thing." He looked me right in the eye. And I said, "Fred, I know you have power charts." He said, "Do you think I would lie to you?" And I said, "Yes." But I didn't get a chance to see any power charts. (1)

Schulein eventually did get the charts. They made interesting reading. The voltage and current showed decreases during the time of the test - "way, way down for a considerable time." The reason the voltage and current was way, way down was that Harvey shut it down, then took the tests. Turning off the power turns off the fluorides. It was done intentionally. Harvey Aluminum doesn't pay claims or control fluorides willingly.

... Inflicting damage and not paying for it is another popular technological subsidy. The economic wisdom of this policy is summed up in the memorable remark of the manager of the Reynolds Metals plant in Troutdale, Oregon: "It is cheaper to pay claims than it is to control fluorides."(8) Judging from the number and variety of suits against the aluminum industry, it's still cheaper to pay claims than to control fluorides. Cheaper yet is to do neither.

One of the most notable cases in this regard was the 17-year fight of Paul and Verla Martin to protect their 1,500 acre cattle ranch east of the Reynolds plant in Troutdale. Martin caught the attention of the company lawyers when he erected a billboard on his property denouncing Reynolds for killing his dairy cattle. He was sued for that, and his own damage suit against Reynolds was met by a phalanx of top attorneys from the likes of Harvey, Alcoa, Georgia Pacific, Weyerhaeuser, and the Association of Oregon Industries.(9) Years later Paul Martin died. His widow sold out to Reynolds.(10) The technology got its breathing room. While some succeed by confronting a legal system that puts a premium on high-priced lawyers, understanding experts and long waits, many do not. The questions are only how big the industrial subsidy will be and for how long will it run...

The aluminum industry's long-accustomed role as the government's step-father made it well prepared for the crises that would come with the awakened interest in environmental issues. The industry locked up the state nad the state of the art and has not come close to letting them go.

There is not a business executive in the country who would deny that tight control over operations is the key to economic success. Uncertainties eliminated from production, distribution and marketing are assurances of profitability. Risks to the technology must be banished also. When they take the form of the public regulation of allowable effluent, the best industrial security is to write the rules for the public. The technological defense swarms on the state at every opportunity.

The Aluminum Association has gone to the trouble of preparing recommended air quality standards for fluorides.(22) The numbers are obscure to the non-professional, but are said to be inadequate to protect some types of vegetation and dairy cattle.(23) They clearly afford no margin for error. They are warmly recommended in three scientific brochures distributed by the Aluminum Association.(24) They are now the law in several states.

Oregon and Washington offer a representative example of deference to this industrial expertise. Early in 1970 the staffs of the two states' agencies charged with air quality control looked around for a handle on the problem of fluoride emissions and grabbed hold of the Aluminum Association's recommendations which were just about the only recorded wisdom on the subject. The question became how best to defend this industrial insight.

Washington's Jerry Hildebrandt and Oregon's Fred Skirvin came up with the idea to invite the association's experts to attend public hearings in both states as guests of the agencies. On January 7, 1970, Hildebrandt wrote to Skirvin: "Our Board has now set a hearing on the aluminum plant and fluoride regulations for February 25th ... at the Olympia airport. The hearing is scheduled to begin at 1:30 p.m. to allow time for Professor [W.J.] Suttie [author of one of the Aluminum Association's scientific brochures] and Mr. [Leonard] Weinstein (an industry consultant) to fly in that morning if they can...Thanks for your assistance in requesting Messieurs Suttie and Weinstein. Please let me know as soon as you hear of a firm schedule so that arrangements can be made to provide the gentlemen with local transportation if they are unable to attend our hearing." A copy of the letter went to Don Winson whose Pittsburgh law firm represents the Aluminum Association. On January 20, Winson wrote to Suttie, Weinstein and Delbert McCune [author of another association brochure] spelling out these comfortable arrangements: "The air pollution staffs of Oregon and Washington have asked the Aluminum Ass'n to arrange for you to be present at the public hearings in those two states on the proposed primary aluminum industry air pollution regulations to testify in support of the fluoride positions of those proposed regulations." The hearing "has been scheduled for 1:30 p.m. [on February 25] to permit you and any others from the East to travel in the morning.... Pete Hildebrandt of the Washington staff has offered to provide transportation for you from the Seattle-Tacoma Airport to the hearing in Olympia as well as transportation to Portland after the conclusion of the Washington hearing.... I suggest that Joe Byrne be the coordinator in the Northwest with regard to your appearances since I will not be able to attend the hearings." Copies of Winson's letter went to, among others, Harvey's Joe Byrne, J. C. Dale of the Aluminum Association and Alcoa's L. V. Crallcy, all three of whom sit at the right hand of the throne as conspirators on EPA's Primary Aluminum Industry Liaison Committee about which more will be said.

In addition to getting the Aluminum Association's views in person, the state staffers also got them in writing. They sought to plumb the opinion of recognized authorities and soon discovered the aluminum industry owns the science like it owns the pot lines. Although head-counting is unscientific, it tells much about balance among those who look into the less publicized industrial pollutants. Thirteen names appeared on the original list of experts whose opinions were solicited by the state staffers. Of these, three (Weinstein, Suttie and McCune) were brought in courtesy of the Aluminum Association to defend the regulations; others testifi6d for Harvey during its legal difficulties; another was Harvey's Joe Byrne; still another, Washington State University's Donald Adams, has been Intalco's defender for years and a recipient of its. research funds. A single spokesman, A. C. Hill, a biologist at the University of Utah and choice of the growers as arbitrator in the Harvey litigation, could be said to represent those anxious to avoid fluorides. Hill wrote that "your proposed standards arc not adequate to protect vegetation from extensive injury from gaseous fluorides."(25) He recommended ambient standards less than half the levels thought tolerable by the aluminum interests and, by extension, the state governments regulating them.

Of the thirteen experts, the only one not tainted by some kind of bias was Dr. Walter Heck of the Division of Economics Effects Research, National Air Pollution Control Administration, who sent a strong letter to NAPCA's San Francisco office.(26) "I was somewhat surprised at the recommended standards because they represent the values applying to The Dalles situation. . . . There is adequate information in the literature to suggest that these levels are barely marginal and give no latitude for error. I believe the states of Washington and Oregon would be doing a disservice to the aluminum industry, the farmers and the general public by adopting these standards." The disservice Heck protested is well on its way to being written into law by many states with a fluoride problem.

It is not spectacular corruption that helped the aluminum industry write the state standards for fluorides. Conscientious administrators, trying to do their best, were simply denied options. The premises of the law succumbed to the planning prowess of the Aluminum Association - the data, the experts, the weight of opinion, the common assumptions came from a single source. Its purpose is to minimize liability for damage caused and prevent disruption of existing technology.

While the aluminum industry was locking up the state standards on fluorides, they got plenty of help in putting down another unacceptable business risk created by a momentary legal embarrassment. The problem was that the Bonneville Power Administration had included in its ancient form contracts a remarkably strong prohibition against water pollution. The contract clause was titled " Conservation of Natural Resources" and read as follows: "The Administrator will not be obligated to deliver power pursuant to this contract whenever, in his judgement, plants or operations of the Purchaser would harm or detract from the scenic beauties of the Columbia River Gorge, or the waste products from such plants or operations would harm or destroy the fish or other river and aquatic life or otherwise pollute the waters or drainage basins of the Pacific Northwest."(27)

This lawyer's language gave the administrator life and death authority over industrial polluters in the Pacific Northwest. Asking whether BPA customers generate wastes that "would harm or destroy the fish or other river and aquatic life or otherwise pollute the waters" is to seek the obvious. BPA buyers read like a list of Who's Who of the region's polluters - joining the aluminum plants were the utilities, pulp and paper and chemical industries.

Clearly BPA wasn't about to chop the lines it had built for its customers because of embarrassing legalities. The one occasion it was asked to do so (28) brought the reply that "this is the first such notice that Bonneville has received charging ITT Rayonier with operations which might justify termination of power deliveries."(29) (Polluted water doesn't count as sufficient notice.)

But no industry respectful of its planning responsibilities can tolerate a sword being dangled over its power lifeline, even one wielded by hands as friendly as those of the Bonneville Power Administration. There was a chance, however small, that outsiders could force the administrator to act. Unacceptable risks for the modern corporation are eliminated; the law conforms to the technology.

During 1970, as the aluminum industry wrote the state standards on fluorides, BPA and its customers rewrote the "dangerous" anti-pollution clause. The process consisted of a series of Bonneville drafts being whittled down by enthusiastic advisers. A letter from R. Ken Dyer, manager of the Public Power Council ("A Foundation Program of the Northwest Public Power Association") expressed the widely shared opinion that Bonneville's contract provisions can be influenced by the buyers: "We believe substantial progress has been made on these subjects, and that the documents reflect BPA's consideration of PPC suggestions. However, we believe it is reasonable to insist upon a few additional changes in the General Contract Provisions and the BPA Industrial Sales Policy.... We believe it is of vital importance that these last remaining details be finalized in a mutually satisfactory manner.(30)

There was mutual satisfaction with the final contract provisions, especially the anti-pollution clause. The rewrite job makes it virtually impossible for the administrator or anybody else to deny power to a polluting buyer.(31) Profound change without a ripple is the epitome of the efficient technological defense.

An immediate beneficiary of Bonneville's relaxed policies on pollution control was Intalco Aluminum Company, whose plant near Bellingham, Washington, was already one of the largest in the world when its pot lines started up in the fall of 1966. The company has "spared no expense in efforts to control pollution" was the kick-off pledge of Ian MacGregor, president of American Metal Climax and soon to become a member of the National Industrial Pollution Control Council. The company's idea of sparing no expense on water pollution control was to bully state officials into allowing a five-year delay in the installation of a primary treatment system, which finaIly went into operation late in 1971, just about the time a marked deterioration in water quality was detected over an area in excess of four square miles in the vicinity of the plant outfall.(32) Intalco's notable contribution to careful land use was to divert illegally millions of gallons of effluent from its plant by a ditch to a natural drainage way flowing over a bluff and across state-owned tidelands. The bluff eroded, depositing 300,000 cubic yards of earth on the beach. The company's contribution to air quality was over 800 pounds per day of hydrogen fluoride and 15,000 pounds per day of particulates.These emissions began taking their toll of local cattle in as little time as it takes toxic chemicals to react with biological systems.

Bonneville got a chance to endorse these policies when Intalco showed up in 1971 asking for a contract amendmemt increasing its firm's power.(33) A less deserving candidate for administrative leniency would be hard to find. Department of the Interior Regional Representative L.B. Day sent a tough memo on the subject to, BPA Administrator H.R. Richmond: "Excessive air [pollution] being discharged from this particular plant has come to my attention repeatedly. . . . Until such time as I ascertain the environmental controls that this corporation is making, I recommend withholding consummation of this power sales contract agreement." The Department of the Interior's Bureau of Sport Fisheries was tougher yet: "[Serious environment[al] degradation has and will continue to occur with plant operation. Air and water pollution may be substantially abated with operation of control devices now under construction. However, we believe that additional treatment and control mechanisms should be installed whenever possible to reduce [environmental] degradation." Air and wa- ter pollution control systems were described as "either inadequate or nonexistent."

Tough talk, no action. The views of the Bureau of Sport Fisheries never were forwarded to Richmond, apparently because the staff man who was supposed to do it "was piqued at the Bureau's failure to meet his 'September 1' deadline."(34) Richmond wasn't interested in finding out for himself, either. Intalco quickly promised to meet state water pollution standards and pledged to spend $14 million more to control air pollution. Fittingly, for the corporation Governor Evans welcomed five years earlier as a "truly good neighbor . . . in every respect," it was now time for the corporation's president to affirm that "these actions will show our good intent of becoming responsible industrial citizens of the state."(35) In a matter of days Intalco had its power contract and protection from the official threat that had prompted its momentary commitment to social responsibility.

"To summarize," an agency spokesman told a House subcommittee in Decpmber 1971, "BPA has continued to strengthen its environmental contract provisions and monitor compliance through recognized agencies."(36) The explanation for BPA's reluctance to crack down on Intalco? "Specifically," Richmond explained, "we were not informed [by state agencies) of any official complaint having been received relative to Intalco's operations."(37) Extensive, documented damage, a dozen pending lawsuits, a notorious record of intransigency, files full of angry correspondence, and the BPA administrator looks for an "official complaint." Such selectivity confirms the suspicion that the government tends to welcome the role of the trained seal assigned to it by the likes of the aluminum industry.

It is recognized that the lawyer is an advocate, hired to put the interests of his client in the best light. The scientist is someone finer, supposedly scrupulously objective in the search for truth, oblivious to public relations diversions, legal one-sidedness, economic necessities. That science can be bought and sold like a full-page ad or hustled like a lawyer's brief is unacceptable. But the science that looks at the aluminum industry, like the law, suffers a bad case of temporary blindness.

The industry's investments in science and engineering do not differ materially from its investments in bauxite deposits and coal fields. The objective is total control, and it is accomplished by classifying research, channeling funds to friendly hands, stacking advisory committees. The aluminum industry has preferences in science, and they survive concerns about technological abuse remarkably well.

A universally warrantied sanitizer of scientific truth is secrecy. The aluminum industry uses secrecy to make sure uncomfortable truths can't be turned against the technology. It goes without saying that a study paid for by the Aluminum Association will be released if and when it conforms to group notions of propriety:

The study to which you referred concerning gaseous effluents from aluminum production was completed on schedule but not released. Our reason for withholding this is due to the fact that in our view the study was incomplete. We have since provided additional funds to Battelle Memorial Institute to expand on the scope of this study and expect that the final results will be available within the next two months. As soon as we have received ' final clearance from Battelle, I will be most happy to provide you with a Copy.(38)

It is disappointing but predictable that industry's preferences for classified research turn up in grants to universities. A boiler-plate clause found in a Kaiser Aluminum research contract on the "Measurement of Particle Size Distribution at Tacoma Works of Kaiser Aluminum"(39) begins with an acknowledgment that plans or data prepared by the researcher or disclosed to him are "the property of the owner." The contract obligates the researcher to limit acccess to employees directly concerned with the performance of the work. Persons gaining access to data are obliged to sign written agreements promising not to use it except as approved by Kaiser. And the researcher also must go to the extreme of notifying in writing "officers and employees having access to any of said information as to the source and confidential nature thereof" and is obligated to restrain "officers and employees from making unauthorized disclosures and use of any said information."

The ostensible purpose is to protect against disclosure of proprietary information that could help a competitor. Conceivably trade secrets exist, even in this industry born not too long ago of a common mother, Alcoa, and operating with a fundamentally unchanging technology for eighty years. But the lawyer never goes wrong in drafting his suppression clauses to include the kitchen sink. A very real reason for swearing secrecy on subjects as sensitive as the "Measurement of Particle Size Distribution at Tacoma Works of Kaiser Aluminum" is to make sure the data doesn't get into the hands of the enemy, notably the public or its anti-pollution authorities. The whistle-blower who would do something so rash as to tell the truth about the effects of emissions from an aluminum smelter would offend carefully contrived legal restraints and professional engineering good manners which habitually elevate loyal service above something so intangible as the public interest.

Since research is a function of money invested, it can fairly be said that the truth is available to anybody who pays for it. Dr. Oliver Compton of the Department of Horticulture, Oregon State University, has done work on experiments involving fumigation of fruit with fluorine to determine how much causes damage. Portland, Oregon, Attorney Arden Shenker questioned Compton in a courtroom:

Q. Why didn't you make that study before 1967?

A. I inagine the money was not available for this particular study.

Q. Well, speaking of money, you were working at Oregon State University at the time, were you not?

A. Oh, yes.

Q. Do you know how much the Harvey Aluminum Company contributed to the project [on] which you were working in money?

A. I'm not sure exactly.

Q. Give me an approximation then.

A. I wouldn't even mention a figure.

Q. They did make contributions, didn't they?

A. I understand they did.

Q. Did you understand them to have been substantial contributions?

A. Just contributions.

The Court: I presume everything is relative.

Mr. Shenker. I suppose.(40)

Research services on the effects of fluorides on living things are unavailable to some. In 1967 Grant J. Saulie representing Japanese-American vegetable growers hit by the fluorides from the Harvey plant, wrote to request help from the State of Washington.(41) He was told that specialists were available elsewhere: why don't you contact Professor Don Adams at Washington State University who "has extensive experience with fluoride problems and may be able to suggest a course of action for your client."(42) A letter from Saulie to Adams brought this response from the director or Washington State's Engineering Research Division: "The Engineering Research Division is a scientific investigative body devoted to basic and applied research in technological areas for the general good of the state. We do not undertake test work as such nor do we knowingly engage our efforts for one party in a legal dispute with other parties. Since you appear to be seeking a court action for alleged damages," came the sanctimonious expression of neutrality, "[w]e would not be interested in working on this problem under these circumstances.(43) A persistent Saulie was put down harder a year later: "[A] full blown fluoride pollution surveillance program requires meteorologists, fluoride specialists, bio-chemists, agriculture and animal scientists with adequate field laboratories as well as back-up laboratories. . . . costs to mount such a program [are] in the area of $75,000."(44)

Investigating fluorides may be a rich man's folly but it is pursued with enthusiasm at Washington State University's College of Engineering. The college's advisory board is top-heavy with industry influence and could not be without a man from Alcoa. Trade associations and corporations are a principal source of the college's research funds.(41) Intalco bought a seat on this exchange by funding research into the environmental impact of its plant near Bellingham. Short on publishing, long on defense of the employer is the thrust of this academic venture. "Even as scientists," wrote the dean of the Western Washington Huntley College of Engineering, "we have experienced difficulties getting information concerning the over 5-year old study on air pollution."(46)

A request for a copy of the contract between Intalco and WSU's Collcge of Engineering brought not the contract, but additional evidence that some academic institutions revel in their role as industrial laboratories. The director of the Engineering Extension Service sent three reprints on fluorides with the following notation: "Some of them are rather technical and I trust you will need a chemist to interpret the meanings. I hope you will use them with discretion."(47) WSU researchers have been exercising discrction for years, typically on the side of the aluminum industry.

The industry invested early and wisely in the science of fluorides. The chief market to be cornered was the Boyce Thompson Institute for Plant Research which was set up by the late Colonel Thompson with a broad charter to "attack any problem of plant or animal life."(48) The only "fixed requirement" is that the research "will promote the welfare of mankind, help stabilize society and the results will be made freely available to the public." Back in 1951 Dr. F.C. Frary of Alcoa got an idea on how to promote the welfare of mankind and "suggested that the Institute could be of great service to industry and agriculture if it would undertake a definitive research program on fluorides."(49)

By 1963 growers in the Pacific Northwest were beginning to get an insight into the service offered. In one courtroom session, Managing Director George L. McNew testified that Boyce Thompson was "a privately endowed nonprofit institution devoted to the public welfare by the late Colonel Thompson."(50) Institute members were said to be experts in air pollution and in other problems affecting agriculture. On cross-examination, a few more details were extracted by Portland, Oregon, Attorney James Morrell:

Q. Dr. McNew, yesterday you told us a little bit about the organization that you represented, the Boyce Thompson Institute. Isn't it a fact that the Boyce Thompson Institute receives contributions from industry for research in industrial rields?

A. We have a number of grants and contracts with the Federal Government

The Court: No. The question is, Doctor, does private industry make grants to the concern.

The Witness: Yes.

The Court: That is the question.

The Wilness: Yes

The Court: All right. Proceed.

By Mr. Morrell.

Q. Have you received any grants from the aluminum companies around the country?

A. In a group of 12 or 13-

The Court: No. Doctor, the question is do you receive grants from aluminum companies. Just answer the question, and then if you have an explanation you may give it.

The Witness: The answer to that is Yes. It is one of 12, I believe, different organizations that contribute toward air pollution studies.

By Mr. Morrell.

Q. And is one of the 12 aluminum producing companies?

A. The fertilizers, oil, any number of phosphate fertilizers, get interested in this-the people get interested in this, and others.

Q. So you have received grants from phosphate fertilizer producers; is that correct?

A. Yes.

Q. Isn't it a fact that phosphate fertilizer plants are also large fluoride-emitting plants?

A. Yes.

Q. You have received grants from aluminum companies as well; is that correct?

A. That is right. They pool their resources with us.

Q. Has Harvey Aluminum contributed in this field?

A. I believe one year or two years, yes. The last two years. I think it is.

Q. You received grants from Harvey Aluminum: is that correct?

A. Yes.

Q. Now. actually, a couple of your men came out here to the Dalles area a couple of years ago, did they not?

A. That is right.

Q. Was that at the request of Harvey Aluminum Company?

A. I believe that is right; yes, sir.

Q. And you came out last Sunday, also at the request of Harvey Aluminum?

A. That is right.(51)

Seven years later in another courtroom, another arduous effort was undertaken to find out about Boyce Thompson's promotion of the welfare of mankind. The Institute's David McLean was cross-examined by Arden Shenker:

Q. Does Harvey Aluminum Company continue to make its contributions [to the] $200,000 per year that industry contributes to Boyce Thompson Institute?

A. Two hundred thousand dollars per year?

Q. Yes, sir, at least that was what it was in 1963, I assume it is a lot more now. Do you know whether Harvey's contribution continues in the same percentage of the $200,000 annual contribution of the industry for the non-profit research?

A. No, I don't. I know how the budget for the air pollution program is worked up, in general, and it's not nearly to that amount. The institute as a whole. has 40 or more senior scientists and the air pollution program has but five, so our budget does not include that whole $200,000, there are some programs that are entirely --

Q. Harvey continues to contribute substantially to Boyce Thompson?

A. I wouldn't say "substantially" but they do, as many of the industries, and the phosphate industries, the public health service.

Q. How many of the aluminum industries contribute to Boyce Thompson?

A. There are 14 sponsor industries. These are not all aluminum industries.

Q. Practically all of them?

A. Most of them

Q. The sponsors are the aluminum companies, is that right?

A. Partially, yes.

Q. Who else sponsors the project on which you work besides the aluminum companies?

A. The National Air Pollution Control Administration of the Public Health Service, Health Education and Welfare, and funds from our endowment.

Q. You forgot about the phosphate industry. they --

A. I mean as industrial sponsors, yes.

Q. All right, sir. That has been true all the time you have been working for Boyce Thompson and a considerable time before you began working for Boyce Thompson?

A. Since 1951, I think.

Q. How many growers contribute to Boyce Thompson research?

A. No growers.(52)

Over the years, Boyce Thompson mans the skirmish lines in defense of fluorides. Boyce Thompson's Delbert McCune is ready to write a fluorides criteria document for the Aluminum Association and another for the American Petroleum Institute.(53) Boyce Thompson's Leonard Weinstein serves as an arbitrator in a court case on industry's behalf. MCCUne and Weinstein show up together to make sure Oregon and Washington adhere to the industrial norm on fluoride standards. Boyce Thompson witnesses frequent courtrooms, invariably on the defense side and invariably on industry's behalf. As "neutral" experts before state agencies and the courts, as authorities to be quoted, they sell a service, and the service helps the Institute and the aluminum industry.

Science strains under twenty years of incest where finaricial interests, common attitudes and joint ventures intersect. Boyce Thompson has underestimated adverse efrects at The Dalles, has shown extraordinary solicitation for control costs, has expressed interest in developing air pollution-resistant plants and chemical spray defenses (54) - a diversionary mythology that obviates crackdowns at the source. It's all part of the twenty-year plan.

Industry-purchased science does not automatically become government policy. To accomplish that, an intermediary is often needed, and none is more efficient than the nation's most prestigious body of objective thought, the National Academy of Sciences. There is, surprisingly, little difference between the science paid for by the Aluminum Association and the science promulgated by the Academy.

Not too long ago the Academy was enlisted by the Air Pollution Control Office of EPA "to provide a scientific basis for APCO to issue an air quality criteria document on airborne fluoride."(55) The criteria document will point the way toward the emission limitations that will be required of the aluminum industry by the federal government.

The nine members of the academy panel on fluorides include familiar names : Dr. Leonard H. Weinstein of the Boyce Thompson Institute; Dr. Frank A. Smith, co-author of the Aluminum Association's publication on the effects of fluorides on human health, and John W. Suttie who wrote "Air Quality Criteria to Protect Livestock from Fluoride Toxicity" for the Aluminum Association. Delbert McCune of BoyceThompson "served as a special consultant [to the academy panel] and was especially helpful with questions related to the effects of fluorides on vegetation."(56) Suttie, Weinstein and McCune were the trio who testified In support of the Oregon-Washington fluoride standards under the auspices of the Aluminum Association.

Suttie's work for the National Academy of Sciences borrowed heavily from his work for the industry. "Reviews directed specifically toward fluroide toxicity in livestock as an air-pollution problem have been prepared by Suttie,"(57) he wrote anonymously, citing himself. In both publications Suttie insists that "[a]lmost every ailment to which cattle are subject has been claimed by someone to be a sympton of fluoride toxicity."(58) In both publications he downgrades a report on fluorosis in cattle in the Columbia River Valley, which stressed poor reproduction, diarrhea and overgrowth of the hoofs as symptoms of the disease.(59)

What's wrong, one may ask, with the Aluminum Association getting a corner of scientific talent good enough to speak for the Academy? It's preferable to go to the best. And scientists surely do not misrepresent data, whether wearing the hat of the Aluminum Association or the National Academy of Sciences.

The difficulty is that every nuance, every bias counts in a conflict that turns on parts per billion. The National Academy's, i.e., Suttie's, repudiation of the Columbia River Valley study, for example, could be used to discredit that effort if relied upon in the courtroom. Any scientific judgment about permissible standards, moreover is fraught with value choices about trade-offs society must make. The hard question is whether it asks too much of a researcher co cash a check from industry, on the one hand, and yet be sufficiently independent to bite the hand that feeds him, on the other, if that prescription is in order.

A minimal precaution for sanitizing the National Academy's research panels is full disclosure. Timidly, the Academy has gone so far as to ask a committee member to disclose activities and commitments "others may deem prejudicial to the work of the committee or compromising of his independence of judgment."(6O) Who hears about these entangling alliances? "This information will be shared with all committee members and protected, thereafter. Only under unusual circumstances will such information be included in a committee report or otherwise made public, and then, only after consultation with the committce member concerned." A scientist is called upon to echo a judgment that may profoundly affect the nation's economy, technology and environment. But somehow it's an invasion of privacy to ask him to disclose whether he's made a few dollars espousing the views that may become the law of the land.

While forces friendly to aluminum were taking care of the basic science at the National Academy, the industry was keeping a firm lid on the applied science that was under discussion at EPA. It goes without saying that the government needed an industry advisory committee to help in the preparation of its comprehensive study of the pollution control prospects for aluminum. The big producers, including Alcoa, Anaconda, Reynolds and Intalco, pull up a chair at this table. Joe Byrne sits in for Martin Marietta; J.C. Dale and Attorney Don Winson represent the Aluminum Association. Why EPA needs a trade association lawyer sitting on a technical advisory committee defies explanation. Why the industry needs him is easier to understand, for he is there to make sure nothing appears in the report that can jeopardize the technology of his client.

The industry started one step in front, since EPA's choice of contractor for the study was Singmaster & Breyer, an engineering consulting firm that has been rendering services to aluminum companies for years. In case of doubt about first loyalties, the liaison committee was ready with helpful advice. Don Winson fully understands that no future lawsuit against an aluminum coinpany for air pollution can avoid consideration of the capabilities of control technology and its costs. Casting doubt on the state of the art thus quickly became the committee's chief function:(61) the control cost estimates of the contractor were said to be demonstrably too low; references to equipment or control systems that were applicable but had not been "tried" in the industry should be deleted; claims of equipment manufacturers ought to be downplayed; foreign data eliminated; references to trade names of control systems stricken. This coordinated peevishness is designed to make sure the EPA study's definition of the "best technology" reflects what industry is now doing, not what it can be expected to accomplish. There is a difference.

By the end of 1970 even Singmaster & Breyer was losing patience: Some plant operators returned no questionnaires; others left serious gaps including "incomplete information concerning particulate fluoride emissions, carbon and bake plant emissions."(62) More than a year later, with the report nearing completion, the industry deluged the contractor with new data. EPA explained: "This will cause the contractor ... to rewrite considerable pages in the report as well as redo many graphs and tables. At this late date, the contractor will probably require more money to finish the contract as well as delay the issuing of the final report."(63)

The strategy worked unfailingly. As ofjune 1972 the Singmaster & Breyer study had not seen the light of day. Five years of federal authority to do something about fluorides brought neither relief nor a promise of it. Today, as in less turbulent times, the technology of aluminum production is not the people's business. They may pay for it, suffer because of it, clean up after it, pretend to govern it. But the technology's defenders insist upon their own solutions.

The word conspiracy is often used too loosely. It means, simply, an agreement to accomplish unlawful ends; or more broadly, an agreement to accomplish anti-social ends. Conspirators, at law, need not know each other. They need know only that somebody else is going along with the program.

Ask whether the word conspiracy is too strong to describe the domination of economics, politics and science of those who fight under the banner of the aluminum industry. Laws do not pass, science does not come into being unless that industrial sponsor approves; Economic theories are turned upside-down by a system of favoritism that is as elusive as it is massive. The corporate aims of protecting the product and planning for its growth corrupt and overwhelm the institutions that question the inevitability of it all. Influence is not occasional but routine, not accidental but systematic, not modestly successful but thoroughly so. If a technological conspiracy exists, this is it.

References:

1. The quotations and other details of the incident come from Meyer v. Harvey Aluminum Inc., Tr. on Appeal, vol 2, pp. 390-99 (Ore. Hood River Cir. Ct. 1970).

8. Reynolds Metals Co. v. Lampert, 324 F. 2d 465, 466 (9th Cir. 1963).

9. These groups filed amicus curiae briefs in Reynolds Metals Co. v. Lampert, note 8 supra.

10. Reported in P. Keeton and R.F. Keeton, Cases and Materials on Torts (St. Paul: West, 1971), p.377, quoting a newspaper account.

22. The Association recommends that the yearly average fluoride content of forage consumed by cattle should not exceed forty parts per million, with higher values for shorter periods, and suggests the following ambient air standards in parts per billion for gaseous fluorides:

4.5 ppb for 12 consecutive hours
3.5 ppb for 24 consecutive hours
2 ppb for 1 calendar week
1 ppb for 1 calendar month.

23. Notes 25, 26 infra. As long ago as 1955, the National Academy of Sciences was stipulating a safe level of fluorine for dairy cattle to be only 30 parts per million. See Report on Animal Nutrition: The Fluorosis Problem in Livestock Production, Pub. 381.

24. "Air Quality to Protect Livestock from Fluoride Toxicity" by Dr. W.J. Suttie, University of Wisconsin; "Establishment of Air Quality Criteria, With Reference to the Effects of Atmospheric Fluorine on Vegetation" by Delbert C. McCune, Ph.D., Boyce Thompson Institute for Plant Research; and "Air Quality Criteria and the Effects of Fluorides on Man" by Dr. Harold C. Hodge and Dr. Frank A. Smith, University of Rochester School of Medicine and Dentistry.

25. Letter from A. Clyde Hill to Peter W. Hildebrandt, Feb. 20, 1970.

26. Letter to Ralph Longacre, Feb. 23, 1970.

27. For an illustration, See Ex. E. 18, in Bonneville Contract No. 14-03-69319, executed May 2, 1967, by BPA and Rayonier Incorporated (ITT-owned).

28. See letter from author, on behalf of the Environmental Defense Fund, to Henry R. Richmond, BPA administrator, Jan. 19, 1971.

29. See letter from H.R. Richmond to author, Jan. 25, 1971.

30. Letter to Hector Durocher, BPA, Sept. 21, 1970.

31. Now the administrator is obligated to afford the purchaser a "reasonable opportunity to correct any [polluting] condition," before curtailing the delivery of energy. Nor can he cut off the power before a "final determination, including all rights of appeal or other administrative or judicial review," has been made that the purchaser is in violation of pollution control laws. This phrase eliminates decisively the administrator's authority to influence the polluting power user, for a "final determination" is virtually unknown in the history of pollution control.

32. Letter from Thor Tollefson, director, Washington Department of Fisheries, to John Biggs, director, Washington Department of Ecology, Dec. 3, 1971.

33. For a discussion of the Intalco contract renewal, see Report on Protecting America's Estuaries: Puget Sound and the Straits of Georgia and Juan de Fuca, H. Rep. No. 92-1401, 92d Cong., 2d Sess., 1972, pp. 46-9.

34. Id., p.48.

35. Letter from Robert Ferrie to the Deparment of the Interior regional representative, Sept. 30, 1971.

36. Hearings on Protecting America's Estuaries: Puget Sound and the Straits of Georgia and Juan De Fuca, Before the House Subcommittee on Conservation and Natural Resources, 92d Cong., 92d Sess., 1971, p. 400.

37. Memorandum from BPA administrator H.R. Richmond to acting field representative Emmett Willard, Nov. 24, 1971.

38. Letter from J.C. Dale to author, Jan. 21, 1972.

39. The clause is titled "Protection of Proprietary and Confidential Information" and appears in a grant contract from Kaiser Aluminum & Chemical Corp., on file at the University of Washington, Office of Grants and Contract Research. This particular clause is inoperative at the University of Washington as inconsisten with university regulations.

40. Meyer v. Harvey Aluminum Co., Tr. on Appeal, Vol. 7, p. 1273 (Ore. Hood River Cir. Ct. 1970).

41. Letter from Grant J. Saulie to State of Washington Supervisor of Public Health, Welfare and Education, Feb. 6, 1967.

42. Letter from Peter H. Hildebrandt, technical director, Air Quality and Radiation Control Section, Feb. 20, 1967.

43. Letter from E.W. Greenfield to Grant J. Saulie, Mar. 1, 1967.

44. Letter from E.W. Greenfield, May 8, 1968.

45. For a full report on the research division's activities, see: Quest: Annual Report Issue, Oct. 1971, pp. 14-15 (published by the WSU College of Engineering).

46. Letter from Gene W. Miller to author, Jan. 7, 1972.

47. Letter from William H. Knight to author, Jan. 24, 1972.

48. "The Boyce Thompson Institute for Plant Research," undated.

49. "Studies on Atmospheric Fluorides at Boyce Thompson Institute," undated.

50. Renkin v. Harvey Aluminum, Inc., Tr., Vol. 5, p. 666, 226 F. Supp. 169 (D. Ore. 1961).

51. Id. at 666-68.

52. Meyer v. Harvey Aluminum Co., No. 6402, Tr. on Appeal, Vol. 8, pp. 1535-36 (Or. Hood River Cir. Ct. 1970).

53. "On the Establishment of Air Quality Criteria, With Reference to the Effects of Atmospheric Fluorine on Vegetation," Mono #69-3, Feb. 1969.

54. L.H. Weinstein and D.C. McCune, "Implications of Air Pollution for Plant Life," 144 Proceedings of the American Philosophical Society 18, 20-21 (1970).

55. National Academy of Sciences, Biological Effects of Atmospheric Polutants: Fluorides (1971), p. ix.

56. Id., Acknowledgements.

57. Note 55, supra, p. 134.

58. Note 55, supra, p. 151, repeated virtually verbatim in "Air Quality Criteria to Protect Livestock from Fluoride Toxicity," p. 6.

59. D.H. Udall and K.P. Keller, Cornell Veterinarian 159-84 (1952).

60. Statement on potential sources of bias, Philip Handler, president, National Academy of Sciences, Aug. 29, 1971.

61. The contentions that follow are taken from a paper titled "Corrections and Comments by Primary Aluminum Industry Liason Committee," Dec. 27, 1971, and a memo on Trip Report on Aluminum Committee Meeting in San Francisco from Reid Inversion, Metallurgical Section, to Stanley T. Cuffe, Chief of APCO's Industrial Studies Branch, Jan. 24, 1972.