Reserve Mining Company v. United States, 74-1291.

• Decision Date: 04 June 1974
• Docket Number: No. 74-1291.,74-1291.
• Citation: 498 F.2d 1073
• Parties: RESERVE MINING COMPANY et al., Appellants, v. UNITED STATES of America et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

498 F.2d 1073 (1974)

RESERVE MINING COMPANY et al., Appellants, v. UNITED STATES of America et al., Appellees.

No. 74-1291.

United States Court of Appeals, Eighth Circuit.

Submitted May 15, 1974.

Decided June 4, 1974.

Rehearing and Rehearing Denied June 21, 1974.

Edward T. Fride, Duluth, Minn., and Wayne G. Johnson, Silver Bay, Minn., for appellants.

John G. Engberg, Minneapolis, Minn., for amicus.

Edmund B. Clark, Atty., Dept. of Justice, Washington, D. C., Byron E. Starns, Chief Deputy Atty. Gen., St. Paul, Minn., and Howard J. Vogel, Minneapolis, Minn., for appellees.

Before BRIGHT, ROSS and WEBSTER, Circuit Judges.

Rehearing and Rehearing En Banc Denied June 21, 1974.

BRIGHT, Circuit Judge.

Reserve Mining Company is a jointly owned subsidiary of Armco Steel Corporation and Republic Steel Corporation which mines low-grade iron ore, called "taconite," near Babbitt, Minnesota. The taconite is shipped by rail to Reserve's "beneficiating" plant at Silver Bay, Minnesota, on the north shore of Lake Superior, 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 residue into Lake Superior. Approximately 67,000 tons of this waste product, known as "tailings," are daily discharged into the lake.

The use of Lake Superior for this purpose was originally authorized by the State of Minnesota in 1947, and Reserve commenced operations in 1955. In granting this permit to Reserve, the State of Minnesota accepted Reserve's theory that the weight and velocity of the discharge would insure that the tailings would be deposited at a depth of approximately 900 feet in the "great trough" area of the lake, located offshore from Reserve's facility. The permit provides that:

Tailings shall not be discharged * * * so as to result in any material adverse effects on fish life or public water supplies or in any other material unlawful pollution of the waters of the lake * * *.

This enforcement litigation was commenced after state and federal pollution control efforts dating from mid-1969 produced an unsuccessful series of administrative conferences and state court proceedings.¹ On February 2, 1972, the United States Government—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 Section 13 of the 1899 Refuse Act (33 U.S.C. § 407), Section 10 of the Federal Water Pollution Control Act (33 U.S.C. § 1160), 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 Reserve's discharge of asbestiform particles into the air and water. Hearings on a motion for preliminary injunction were consolidated with the trial on the merits, and on April 20, 1974, after 139 days of trial extending over a nine month period and after hearing more than 100 witnesses and examining over 1,600 exhibits, Judge Miles Lord of the United States District Court for the District of Minnesota entered an order closing Reserve's Silver Bay facility. In an abbreviated memorandum opinion, Judge Lord held that Reserve's water discharge violated federal water pollution laws and that its air emissions violated state air pollution regulations, and that both were common law nuisances. Most importantly to the question now before this court, Judge Lord concluded in Findings 9 and 10 of his opinion that:

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 of Wisconsin.

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

Defendants Reserve, Armco, and Republic² noticed their appeal to this court and moved for a stay of the district court's injunction pending the appeal. Judge Lord denied this request and Reserve applied to us for a stay.³

Upon consideration of Judge Lord's opinion of April 20, 1974, the written motion and supporting documents presented by Reserve, and after hearing the arguments of counsel representing appellants and appellees, we entered our order on April 22, 1974, granting a short stay of the temporary injunction until the merits of the motion could be fully heard and decided upon full briefs and extended arguments by both sides. We scheduled a full hearing before the court on May 15, 1974, at the federal courthouse in St. Louis. We have now held that hearing and considered all material pertinent to the motion for stay, including Judge Lord's supplemental memorandum dated May 11, 1974, consisting of 109 typewritten pages of findings of fact and conclusions of law, expanding on his April 20th opinion. The question now before us is whether, considering all facts and circumstances, the injunction order should be stayed pending Reserve's appeal. We grant the stay subject to certain conditions and limitations as stated herein.

I.

A. The Substance of the Controversy.

Although there is no dispute that significant amounts of waste tailings are discharged into the water and dust is discharged into the air by Reserve, the parties vigorously contest the precise nature of the discharge, its biological effects, and, particularly with respect to the waters of Lake Superior, its ultimate destination. Plaintiffs contend that the mineral cummingtonite-grunerite,⁴ which Reserve admits to be a major component of its taconite wastes and a member of the mineral family known as amphiboles, is substantially identical in morphology (or shape and form) and similar in chemistry to amosite asbestos, a fibrous mineral which has been found, in certain occupational settings, to be carcinogenic. The plaintiffs further argue that the mineral fibers discharged represent a serious health threat, since they are present in the air of Silver Bay and surrounding communities and, by way of dispersion throughout Lake Superior, in the drinking water of Duluth and other communities drawing water from the lake.

Reserve has maintained throughout this litigation that its cummingtonite-grunerite does not have a fibrous form and is otherwise distinguishable from amosite asbestos. Reserve further maintains the tailings cannot be said to pose any health hazard and, in any event, with respect to its discharge into water, the tailings largely settle to the bottom of the lake in the "great trough" area within close range of the plant.

The evidence presented on these points was extensive and complex. There was testimony as to the comparisons of mineralogy between Reserve's cummingtonite-grunerite and amosite asbestos, based on electron miscroscope analysis of morphology, x-ray diffraction analysis of crystal structure, and laboratory analysis of chemical composition. As for the dispersion through Lake Superior, there was considerable testimony as to whether Reserve was the sole source of cummingtonite-grunerite in the lake and whether the presence of the mineral could thus be used as a "tracer" for Reserve's discharge. The district court found, as plaintiffs contended, that Reserve discharged particles identical to and similar to amosite asbestos, and that the particles discharged into Lake Superior were dispersed widely.

The suggestion that particles of the cummingtonite-grunerite in Reserve's discharges are the equivalent of amosite asbestos raised an immediate health issue, since inhalation of amosite asbestos at occupational levels of exposure is a demonstrated health hazard resulting in asbestosis and various forms of cancer. However, the proof of a health hazard requires more than the mere fact of discharge; the discharge of an agent hazardous in one circumstance must be linked to some present or future likelihood of disease under the prevailing circumstances. An extraordinary amount of testimony was received on these issues, and the district court designated several court witnesses to serve as impartial sources of review and evaluation.

B. What the District Court Decided.

The district court's conclusion—that Reserve's discharge into Lake Superior and its emissions into the air created a common law nuisance under federal and state law, and violated state and federal pollution laws—made the discharges subject to abatement. In determining the proper remedy, the court concededly balanced the equities and considered the economic and technological feasibility of abatement and the protection of the public health. The course of the proceedings indicate that the rather drastic remedy ordered by the district court—the immediate closing of the plant—was a response to the finding of a substantial danger to the public health. This is clear from the court's initial memorandum, where Judge Lord notes:

The Court has no other alternative but to order an immediate halt to the discharge which threatens the lives of thousands. In that defendants have no plan to make the necessary modifications, there is no reason to delay any further the issuance of the injunction.

II.

We come now to our limited review of the district court's injunction ordering Reserve Mining to cease immediately its discharges into the air and water. In considering whether our temporary stay of that injunction should remain in effect, we note the usual formulation of the applicable standards to be met by the party seeking a stay under Fed.R.Civ.P. 62 and Fed.R.App.P. 8: (1) a strong showing that he is likely to succeed on the merits of the appeal; (2) a showing that, unless a stay is granted, he will suffer irreparable injury; (3) a showing that no substantial harm will...