514 F.2d 492 (8th Cir. 1975), 75-1005, Reserve Min. Co. v. E.P.A.

Docket Nº:and 75-1005
Citation:514 F.2d 492
Party Name:73, 5 Envtl. [PG20,596 RESERVE MINING COMPANY, a Minnesota Corporation, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and William D. Ruckelshaus, Individually andas Administrator of the Environmental Protection Agency, Respondents. RESERVE MINING COMPANY et al., Appellants, v. UNITED STATES of America et al., Appellees. UNITED STATES of America, A
Case Date:March 14, 1975
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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514 F.2d 492 (8th Cir. 1975)

73, 5 Envtl. [PG20,596

RESERVE MINING COMPANY, a Minnesota Corporation, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY and William D. Ruckelshaus,

Individually andas Administrator of the

Environmental Protection Agency, Respondents.

RESERVE MINING COMPANY et al., Appellants,

v.

UNITED STATES of America et al., Appellees.

UNITED STATES of America, Appellant,

v.

RESERVE MINING COMPANY et al., Appellees.

RESERVE MINING COMPANY et al., Appellants,

v.

UNITED STATES of America et al., Appellees.

The STATE OF WISCONSIN, Appellant,

v.

RESERVE MINING COMPANY et al., Appellees.

MINNESOTA ENVIRONMENTAL LAW INSTITUTE, INC., et al., Appellants,

v.

UNITED STATES of America et al., Appellees.

The STATE OF MICHIGAN, Appellant,

v.

RESERVE MINING COMPANY et al., Appellees.

Nos. 73-1239, 74-1291, 74-1466, 74-1816, 74-1977, 75-1003

and 75-1005

United States Court of Appeals, Eighth Circuit

March 14, 1975

Submitted Dec. 9, 1974.

As Modified on Rehearing and Order on Remand April 8, 1975.

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Edmund B. Clark, Chief, Appellate Section, Dept. of Justice, Thomas F. Bastow, Washington, D. C., for the United States.

Philip J. Mause, Staff Atty., Environmental Defense Fund, Inc., Washington, D. C., for Environmental Defense.

Robert B. McConnell, Madison, Wis., for State of Wisconsin.

Byron E. Starnes, Chief Deputy Atty. Gen., St. Paul, Minn., for State of Minnesota.

Edward T. Fride, Duluth, Minn., Maclay R. Hyde, Minneapolis, Minn., for Reserve Mining Co.

Wayne G. Johnson, Johnson & Thomas, Silver Bay, Minn., for intervenor.

John G. Engberg, Minneapolis, Minn., for U. S. Steelworkers.

William T. Egan, Minneapolis, Minn., for Republic Steel.

G. Allen Cunningham, Minneapolis, Minn., for Armco Steel.

William T. Egan, and Maclay R. Hyde, Minneapolis, Minn., made appearance for appellees Reserve Mining Co. et al. in No. 74-1977.

William T. Egan, Howard J. Vogel, Legal Counsel, and Maclay R. Hyde, Minneapolis, Minn., for appellants Minn. Environmental Law Inst., Inc., et al. in No. 75-1003.

Wayne G. Johnson, Johnson & Thomas, Silver Bay, Minn., O. C. Adamson, II, Minneapolis, Minn., Edward T. Fride, and John M. Donovan, Duluth, Minn., for appellees United States et al. in No. 75-1003.

No appearance for appellant State of Michigan.

Maclay R. Hyde, O. C. Adamson, II, and William T. Egan, Minneapolis, Minn., for appellees Reserve Mining Co. et al. in No. 75-1005.

Before LAY, BRIGHT, ROSS, STEPHENSON and WEBSTER, Circuit Judges, En Banc.

BRIGHT, Circuit Judge.

The United States, the States of Michigan, Wisconsin, and Minnesota, and several environmental groups seek an injunction ordering Reserve Mining Company 1 to cease discharging wastes from its iron ore processing plant in Silver Bay, Minnesota, into the ambient air of Silver Bay and the waters of Lake Superior. On April 20, 1974, the district court granted the requested relief and ordered that the discharges immediately cease, thus effectively closing the plant. United States v. Reserve Mining Co., 380 F.Supp. 11 (D.Minn.1974). Reserve Mining Company appealed that order and we stayed the injunction pending resolution of the merits of the appeal. Reserve Mining Co. v. United States, 498 F.2d 1073 (8th Cir. 1974). We affirm the injunction but direct modification of its terms. As to other issues brought before us by appeals during the course of

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this complex litigation, we affirm in part and reverse in part.

SUMMARY OF DECISION

In this lengthy opinion, we undertake a comprehensive analysis of the relevant scientific and medical testimony and evaluate the claims of the plaintiffs that Reserve's conduct violates express provisions of federal law as well as state laws and regulations and is a public nuisance.

We summarize our key rulings as follows:

1) The United States and the other plaintiffs have established that Reserve's discharges into the air and water give rise to a potential threat to the public health. The risk to public health is of sufficient gravity to be legally cognizable and calls for an abatement order on reasonable terms.

2) The United States and Minnesota have shown that Reserve's discharges violate federal and state laws and state pollution control regulations, also justifying injunctive relief on equitable terms.

3) No harm to the public health has been shown to have occurred to this date and the danger to health is not imminent. The evidence calls for preventive and precautionary steps. No reason exists which requires that Reserve terminate its operations at once.

4) Reserve, with its parent companies Armco Steel and Republic Steel, is entitled to a reasonable opportunity and a reasonable time period to convert its Minnesota taconite operations to on-land disposal of taconite tailings and to restrict air emissions at its Silver Bay plant, or to close its existing Minnesota taconite-pelletizing operations. The parties are required to expedite consideration and resolution of these alternatives.

5) The evidence suggests that the threat to public health from the air emissions is more significant than that from the water discharge. Consequently, Reserve must take reasonable immediate steps to reduce its air emissions.

I. INTRODUCTION

A. Summary of Controversy.

In 1947, Reserve Mining Company (Reserve), then contemplating a venture in which it would mine low-grade iron ore ("taconite") present in Minnesota's Mesabi Iron Range and process the ore into iron-rich pellets at facilities bordering on Lake Superior, received a permit 2 from the State of Minnesota to discharge the wastes (called "tailings") from its processing operations into the lake. 3

Reserve commenced the processing of taconite ore in Silver Bay, Minnesota, in 1955, and that operation continues today. Taconite mined near Babbitt, Minnesota, is shipped by rail some 47 miles to the Silver Bay "beneficiating" plant where it is concentrated into pellets containing some 65 percent iron ore. The process involves crushing the taconite into fine granules, separating out the metallic iron with huge magnets, and flushing the residual tailings into Lake Superior. The tailings enter the lake as a slurry of approximately 1.5 percent solids. The slurry acts as a heavy density current bearing the bulk of the suspended particles to the lake bottom. In this manner, approximately 67,000 tons of tailings are discharged daily. 4

The states and the United States commenced efforts to procure abatement of

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these discharges as early as mid-1969. These efforts, however, produced only an unsuccessful series of administrative conferences and unsuccessful state court proceedings. 5 The instant litigation commenced on February 2, 1972, when the United States joined eventually by the States of Minnesota, Wisconsin, and Michigan and by various environmental groups filed a complaint alleging that Reserve's discharge of tailings into Lake Superior violated § 407 of the Rivers and Harbors Act of 1899 (33 U.S.C. § 401 et seq. (1970)), 6 § 1160 of the pre-1972 Federal Water Pollution Control Act (FWPCA) (33 U.S.C. § 1151 et seq. (1970)) 7 and the federal common law of public nuisance.

Until June 8, 1973, the case was essentially a water pollution abatement case, but on that date the focus of the controversy shifted to the public health impact of the tailings discharge and Reserve's emissions into the ambient air. Arguing the health issue in the district court, plaintiffs maintained that the taconite ore mined by Reserve contained an asbestiform variety of the amphibole mineral cummingtonite-grunerite, 8 and that the processing of the ore resulted in the discharge into the air and water of mineral fibers substantially identical and in some instances identical to amosite asbestos. 9 This contention raised an immediate health issue, since inhalation of asbestos at occupational levels of exposure is associated with an increased incidence of various forms of cancer.

Although it is undisputed that Reserve discharges significant amounts of waste tailings into Lake Superior and dust into the Silver Bay air, the parties vigorously contest the precise physical properties of the discharges, their biological effects, and, with respect to the water discharge, the issue of whether a significant proportion of the discharge, instead of flowing to the lake bottom with the density current, disperses throughout the lake. Plaintiffs attempted to show that a substantial amount of the fibers discharged by Reserve could be classified as amosite asbestos, and that these fibers could be traced in the ambient air of Silver Bay and surrounding communities and in the drinking water of Duluth and other communities drawing water from the lake. Reserve countered that its cummingtonite-grunerite does not have a fibrous form and is otherwise distinguishable from amosite asbestos. It further maintained that the discharges do not pose any cognizable hazard to health and that, in any event, with respect to the discharge into water, the tailings largely

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settle to the bottom of the lake in the "great trough" area as initially planned. 10

The evidence presented on these points was extensive and complex. Hearings on a motion for a preliminary injunction were consolidated with the trial on the merits and during the nine-month period of 139 days of trial, the trial court heard more than 100 witnesses and received over 1,600 exhibits. The parties introduced testimony comparing the mineralogy of Reserve's cummingtonite-grunerite with amosite asbestos, such testimony based on electron...

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