United States v. Reserve Mining Company

• Decision Date: 03 August 1974
• Docket Number: No. 5-72 Civil 19.,5-72 Civil 19.
• Citation: 380 F. Supp. 11
• Parties: UNITED STATES of America et al., Plaintiffs, v. RESERVE MINING COMPANY et al., Defendants.
• Court: U.S. District Court — District of Minnesota

380 F. Supp. 11

UNITED STATES of America et al., Plaintiffs, v. RESERVE MINING COMPANY et al., Defendants.

No. 5-72 Civil 19.

United States District Court, D. Minnesota, Fifth Division.

April 20, 1974.

Supplemental Opinion May 11, 1974.

Additional Supplemental Opinion August 3, 1974.

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Robert G. Renner, U. S. Atty., Minneapolis, Minn., John P. Hills, Pollution Control Section, U. S. Dept. of Justice, Washington, D. C., Thomas Bastow, Legal Support Div., Environmental Protection Agency, Washington, D. C., for plaintiff United States.

Warren Spannaus, Atty. Gen. of Minn., St. Paul, Minn., Jonathan H. Morgan, Sol. Gen. of Minn., St. Paul, Minn., Byron E. Starns, Chief Deputy Atty. Gen. of Minn., St. Paul, Minn., for plaintiff State of Minnesota.

John E. Kofron, Asst. Atty. Gen. of Wis., Madison, Wis. for intervenor State of Wisconsin.

Jerome Maslowski, Francis J. Carrier and Clive D. Gemmill, Lansing, Mich. for intervenor State of Michigan.

Howard J. Vogel, Minneapolis, Minn., Scott H. Lang, Washington, D. C., for plaintiff intervenors.

William P. Dinan, City Atty., Duluth, Minn., for plaintiff intervenor, City of Duluth.

William A. Hammann, City Atty., Superior, Wis., for plaintiff intervenor, City of Superior.

Edward T. Fride, Sullivan, Hanft, Hastings, Fride & O'Brien, Duluth, Minn., Maclay, Hyde, Lindquist and Vennum, Minneapolis, Minn., for defendant Reserve Mining Co.

William T. Egan, Rider, Bennett, Egan, Johnson & Arundel, Minneapolis, Minn., for defendant Republic Steel Corp.

Charles Murnane and Robert T. White, Murnane, Murnane, Battis & Conlin, St. Paul, Minn., for defendant Armco Steel Corp.

Wayne G. Johnson, Johnson & Thomas, Silver Bay, Minn., William R. Ojala, Fred A. Cina, Aurora, Minn., Mitchel H. Costley, Lake County Atty., Two Harbors, Minn., John M. Donovan, Joseph B. Johnson, Duluth, Minn., John G. Engberg, Minneapolis, Minn., for defendant intervenor.

MEMORANDUM AND ORDER

MILES W. LORD, District Judge.

This action for injunctive relief is before the Court after 139 days of trial, which included testimony from well over 100 witnesses, over 1621 exhibits, and over 18,000 pages of transcript. Of necessity, it will require several weeks before the Court will be able to set forth in writing its detailed findings of fact and conclusions of law. Inasmuch as the case deals with issues concerning public health, the ultimate resolution of the problem should not be delayed by this procedural matter. The Court has carefully considered all of the evidence and hereto sets forth its essential findings of fact and conclusions of law to be refined and supplemented at a later date.

Findings of Fact

1) Reserve Mining Company (Reserve) is set up and run for the sole

benefit of its owners, Armco Steel Corporation (Armco) and Republic Steel Corporation (Republic), and acts as a mere instrumentality or agent of its parent corporations. Reserve is run in such a manner as to pass all its profits to the parents.

2) Reserve acting as an instrumentality and agent for Armco and Republic discharges large amounts of minute amphibole fibers into Lake Superior and into the air of Silver Bay daily.

3) The particles when deposited into the water are dispersed throughout Lake Superior and into Wisconsin and Michigan.

4) The currents in the lake, which are largely influenced by the discharge, carry many of the fibers in a southwesterly direction toward Duluth and are found in substantial quantities in the Duluth drinking water.

5) Many of these fibers are morphologically and chemically identical to amosite asbestos and an even larger number are similar to amosite asbestos.

6) Exposure to these fibers can produce asbestosis, mesothelioma, and cancer of the lung, gastrointestinal tract and larynx.

7) Most of the studies dealing with this problem are concerned with the inhalation of fibers; however, the available evidence indicates that the fibers pose a risk when ingested as well as when inhaled.

8) The fibers emitted by the defendant into Lake Superior have the potential for causing great harm to the health of those exposed to them.

9) The discharge into the air substantially endangers the health of the people of Silver Bay and surrounding communities as far away as the eastern shore in Wisconsin.

10) The discharge into the water substantially endangers the health of the people who procure their drinking water from the western arm of Lake Superior including the communities of Beaver Bay, Two Harbors, Cloquet, Duluth, and Superior, Wisconsin.

11) The present and future industrial standard for a safe level of asbestos fibers in the air is based on the experience related to asbestosis and not to cancer. In addition its formulation was influenced more by technological limitations than health considerations.

12) The exposure of a non-worker populace cannot be equated with industrial exposure if for no other reason than the environmental exposure, as contrasted to a working exposure, is for every hour of every day.

13) While there is a dose-response relationship associated with the adverse effects of asbestos exposure and may be therefore a threshold exposure value below which no increase in cancer would be found, this exposure threshold is not now known.

Conclusions of Law

1) The Court has jurisdiction over the subject matter of the various claims pursuant to 28 U.S.C. §§ 1345 and 1331. As to those claims based upon state law, the Court exercises its jurisdiction pursuant to the doctrine of pendant jurisdiction.

2) Reserve's discharge into the water is in violation of the Federal Water Pollution Control Act as amended in 1970. 33 U.S.C. § 1151 et seq. The violations involve both interstate and intrastate waters and are subject to abatement pursuant to 33 U.S.C. § 1160(c)(5) and (g)(1). Specifically Reserve's discharge is in violation of water quality standards referred to as WPC 15(a)(4), (c)(6) and (c)(2).

3) Reserve's discharge into the water creates a common law nuisance in both interstate and intrastate waters of Lake Superior.

4) Reserve has no permit that sanctions its violations of the Federal Water Pollution Control Act as amended in 1970.

5) Reserve has no permit that sanctions its creation of a common law nuisance in the waters of Lake Superior.

6) Reserve's discharge into the air creates a common law nuisance condition in the ambient air in Silver Bay and the surrounding communities and is subject to abatement. Furthermore, the air discharge violates Minnesota Regulations APC 5, 6 and 17.

7) Industrial standards for asbestos exposure do not apply to environmental exposure and are therefore not applicable to the facts in this case.

8) In that Reserve is a mere instrumentality or agent of its parents who have used Reserve as a shield to protect themselves from the consequences of Reserve's illegal pollution of Lake Superior, Armco and Republic must bear legal responsibility for Reserve's actions. Furthermore, since Reserve's profits are siphoned off by its parents, in order to insure an effective remedy if civil fines or other monetary relief are called for, the independent corporate entity of Reserve must be disregarded.

9) All additional legal questions including the question of civil fines, financial responsibility for water filtration systems in Lake Shore communities, alleged violations of the Refuse Act, 33 U.S.C. § 407, specific Wisconsin criminal and civil statutes as well as the Wisconsin Public trust doctrine, and Reserve's counterclaims against the State of Minnesota are taken under advisement and will be decided at a later date. The question as to what part of the potential fines and penalties should be awarded to Reserve employees or others who would lose their jobs is likewise held for further argument and consideration.

Memorandum

It has been clearly established in this case that Reserve's discharge creates a serious health hazard to the people exposed to it. The exact scope of this potential health hazard is impossible to accurately quantify at this time. Significant increase in diseases associated with asbestos exposure do not develop until 15 to 20 years after the initial exposure to the fibers. The state of the scientific and medical knowledge available in this area is in its early stages and there is insufficient knowledge upon which to base an opinion as to the magnitude of the risks associated with this exposure. The fact that few fibers have been found in the tissue of certain deceased Duluth residents may indicate that the general contamination in the community of Duluth has not yet reached alarming proportions. Unfortunately, the real answer to the problem will not be available until some ten to twenty years from this date when the health experience of those exposed to the fibers emitted from Reserve's plant is reviewed. At present the Court is faced with a situation where a commercial industry is daily exposing thousands of people to substantial quantities of a known human carcinogen. Emphasis is placed upon the fact that the Court is not dealing with a situation in which a substance causes cancer in experimental animals where the effect on humans is largely speculative. Fibers identical and similar to those emitted from Reserve's plant have been directly associated with a marked increase in the incidence of cancer in humans.

The Court has been constantly reminded that a curtailment in the discharge may result in a severe economic blow to the people of Silver Bay, Babbitt and others who depend on Reserve directly or indirectly for their livelihood. Certainly unemployment in itself can result in an unhealthy situation. At the same time, however, the Court must consider the people downstream from the discharge. Under no circumstances will the Court allow the people of Duluth to be continuously and indefinitely exposed to a known human carcinogen in order that the people in...