United States v. Republic Steel Corporation

• Citation: 155 F. Supp. 442
• Decision Date: 24 June 1957
• Docket Number: No. 54 C 1608.,54 C 1608.
• Parties: UNITED STATES of America v. REPUBLIC STEEL CORPORATION, International Harvester Company, and Interlake Iron Corporation.
• Court: U.S. District Court — Northern District of Illinois

155 F. Supp. 442

UNITED STATES of America v. REPUBLIC STEEL CORPORATION, International Harvester Company, and Interlake Iron Corporation.

No. 54 C 1608.

United States District Court N. D. Illinois, E. D.

June 19, 1957.

As Amended June 20, 1957.

Decree June 24, 1957.

Robert Tieken, U. S. Dist. Atty., Chicago, Ill., by Alexander O. Walter and Richard C. Bleloch, Asst. U. S. Attys., Chicago, Ill., for plaintiff.

Harold C. Lumb, Cleveland, Ohio, R. Corwine Stevenson, Paul R. Conaghan, of Stevenson, Conaghan, Velde & Hackbert, Chicago, Ill., for defendant Republic Steel Corp.

W. S. Bodman, Wilson & McIlvaine, Chicago, Ill., for defendant International Harvester Co.

Henry E. Seyfarth, Robert W. MacDonald and Walter P. Loomis, of Seyfarth, Shaw & Fairweather, Chicago, Ill., and Benjamin F. Fiery, Warren Daane, and Glenn E. Offenbacher, Baker, Hostetler & Patterson, Cleveland, Ohio, for Defendant Interlake Iron Corp. BARNES, Chief Judge.

This cause, now before the court for decision after hearing on the merits, was instituted by the United States: (1) to secure an injunction enjoining the defendants, Republic Steel Corporation, International Harvester Company, and Interlake Iron Corporation, from depositing and discharging industrial solids or flue dust into the channel of the Calumet River, a navigable water of the United States, without first obtaining a permit from the Department of the Army providing for suitable and satisfactory conditions for the removal of such deposits and discharges; and (2) to secure a mandatory injunction directing the defendants, and each of them, upon a day certain, by dredging operations or otherwise, to restore the Federal channel of the Calumet River between Stations 105 and 300 to the original channel depth of 21 feet. In its amended complaint the Government alleges that, in 1951, the defendants, upon request of the office of the Chief of Engineers, Department of the Army, paid the costs of dredging the channel of the Calumet River and thereby restored the river to its original depth of 21 feet, and that since the date of the last dredging operation in 1951 the defendants, as an incident to operating their mills located along the banks and channel of the river, have been discharging and depositing industrial solids and flue dust into the channel of the river, thereby reducing the depth of the river, and that such continued discharge and deposit constitute an obstruction of a navigable water of the United States and an interference with and an obstruction to interstate and foreign commerce and injury to the public interest. It is further alleged in the amended complaint that the continued discharge by defendants of industrial solids and flue dust into the Calumet River is unlawful and in violation of Sections 403 and 407, Title 33 U.S.C.A. The defendants deny that they have been discharging and depositing industrial solids and flue dust into the channel of the river which have reduced the channel depth or impaired the navigability of the river; that, in the event the channel depth has been reduced from 21 feet, such reduction is principally due to the deposit and accumulation in said channel of material from natural causes, and that other companies and industries conducting operations along said river have deposited material therein. The defendants admit that, in 1951, they each shared in the cost of dredging, as alleged by the Government, but they deny that such action constituted an admission that they were obligated to make such payment or to dredge the river in the future. Defendants further contend that their liability, if any, is several only and not joint or joint and several. Republic contends that the Government's claim is barred by the Illinois five-year statute of limitations. S.H.A. ch. 83, § 16. International Harvester states that, since it is willing to remove all material from the river for which it is responsible, if any, when the amount of such material has been properly determined, the injunctional relief sought should be denied.

The court listened to the evidence in this case during 27 court days, and is clearly of the opinion that the evidence established that all of the defendants, in violation of Sections 403 and 407, Title 33 U.S.C.A. have discharged, and are continuing to discharge, industrial solids, not in a liquid state, through their sewers or through their sewers and connecting slips, into the channel of the Calumet River adjacent to their plants, and that such discharges have resulted in reducing the depth of the river channel in the vicinity. The contentions of the defendants that the reduction in depth of the river channel adjacent to their plants is principally due to natural causes or the operations of other industries along the river have not been sustained by the evidence. It therefore appears to the court that the Government is entitled to an order enjoining and restraining the defendants, and each of them, from discharging industrial solids and flue dust into the river in the future without first obtaining a permit from the Department of the Army providing for suitable and satisfactory conditions for the removal of such deposits and discharges, the defendants to be given a reasonable time, not exceeding six months, to comply with such order.

On the question as to whether or not the Government is entitled to a mandatory injunction requiring the defendants to restore the Federal channel of the river to the original channel depth of 21 feet, the defendants contend that, since there is a lack of evidence to fix the responsibility of each defendant for the amount of solids contributed by it to the deposits in the channel, it would not be proper to enter a mandatory order against all three defendants "jointly."

The Government has not in this case contended for joint liability and, accordingly, the court will not decree joint liability. Had the Government contended for joint liability, and had the case been tried on that basis, the court is inclined to think that it would have held the defendants jointly and severally liable for the commission of a public nuisance by obstructing a navigable stream. See Cook v. City of Du Quoin, 256 Ill.App. 452; Fox v. City of Joliet, 150 Ill.App. 491.

There is evidence that of the shoaling of the river between Stations 105 and 300, resulting from the deposit of industrial waste therein, the three defendants together are responsible for approximately 70% to approximately 93% thereof. There was evidence of the number of tons of iron and steel each defendant produces annually, the amount of water each of the defendants takes out of the Calumet River monthly, the number of sewers each defendant has emptying into the river, and that each of the defendants deposits industrial waste, including flue dust, into the river; but the exact amount of solids contributed by the defendants as a group to the deposits in the channel was not shown. As a matter of fact, the Government admits that there is insufficient data and information available to determine the three defendants' exact contribution to the industrial wastes in the Federal channel.

The court, upon consideration of all the evidence, has reached the conclusion that the mean of the aforesaid estimates, that is, 81.5% fairly represents the aggregate responsibility of the three defendants for the shoaling in the Federal channel between Stations 105 and 300, and that 81.5% of the waste material that has been deposited in the 21-foot Federal channel between Stations 105 and 300 should be removed by the three defendants, except to the extent that it has already been removed by them by dredging since 1951.

Some or all of the defendants have done dredging in the Federal channel between Stations 105 and 300 since 1951. The Government concedes that each of the three defendants should have credit for such dredging, if any, as it has done in the Federal channel since 1951. It seems to the court, and the court holds, that the total amount of deposits in the Federal channel between Stations 105 and 300 should be determined in the following manner.

Each defendant should show, by evidence satisfactory to the court, if it has not already done so, the amount of dredging it has done in the Federal channel since 1951. The aggregate of the dredgings, by such of the defendants as have dredged since 1951, should be added to the industrial wastes remaining in the channel between Stations 105 and 300, due consideration being given to the relative density of the wastes in the channel and that of the wastes in scows after dredging. The aggregate of the wastes in place in the channel and the wastes dredged as aforesaid since 1951 would give the wastes with which we are concerned in this case,—it being remembered that the three defendants are, in the aggregate, responsible only in respect of 81.5% of such aggregate wastes. And, since the three defendants are, in the aggregate, responsible in respect of only 81.5% of such aggregate wastes, when it comes to computing the credits to which the three defendants are entitled for the dredging by them of wastes since 1951, it should be remembered that the wastes dredged by them were only 81.5% theirs and that the remaining 18.5% were wastes of other wrongdoers, and that, accordingly, when it comes to deducting for credit for dredging since 1951 only 81.5% of the amount of the dredging done by each defendant since 1951 should be allowed as a credit.

The three defendants are insistent that they be required to remove only what they themselves had deposited; accordingly, when it becomes necessary to compel them to do what they should have done voluntarily, there is no reason why they should be credited for the voluntary removal of wastes deposited by other wrongdoers.

The Government further admits that there is insufficient data and information available to determine each defendant's exact contribution of industrial wastes to the Federal...