United States v. Republic Steel Corporation

• Decision Date: 01 June 1959
• Docket Number: No. 12248-50.,12248-50.
• Citation: 264 F.2d 289
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. REPUBLIC STEEL CORPORATION, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. INTERNATIONAL HARVESTER COMPANY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. INTERLAKE IRON CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

264 F.2d 289 (1959)

UNITED STATES of America, Plaintiff-Appellee, v. REPUBLIC STEEL CORPORATION, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. INTERNATIONAL HARVESTER COMPANY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. INTERLAKE IRON CORPORATION, Defendant-Appellant.

Nos. 12248-50.

United States Court of Appeals Seventh Circuit.

January 22, 1959.

Certiorari Granted June 1, 1959.

COPYRIGHT MATERIAL OMITTED

H. C. Lumb, Cleveland, Ohio, Paul R. Conaghan, Chicago, Ill. (Stevenson, Conaghan, Hackbert, Rooks & Pitts, Chicago, Ill., of counsel), for Republic Steel Corp., defendant-appellant.

David G. Moyer, W. S. Bodman, Chicago, Ill., Peter A. Dammann, George W. Thompson, Chicago, Ill. (Wilson & McIlvaine, Chicago, Ill., of counsel), for International Harvester Co., defendant-appellant.

Henry E. Seyfarth, Chicago, Ill., Raymond T. Jackson, Cleveland, Ohio, Robert W. Macdonald, Chicago, Ill., Warren Daane, Cleveland, Ohio (Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., Baker, Hostettler & Patterson, Cleveland, Ohio, of counsel), for defendant-appellant Interlake Iron Corp.

Robert Tieken, U. S. Atty., Richard C. Bleloch, John Peter Lulinski, Asst. U. S. Attys., Chicago, Ill., Perry W. Morton, Asst. Atty. Gen., Roger P. Marquis, Dept. of Justice Chief, Appellate Section Lands Division, Washington, D. C., for plaintiff-appellee.

Before DUFFY, Chief Judge, and MAJOR and KNOCH, Circuit Judges.

Certiorari Granted June 1, 1959. See 79 S.Ct. 1150.

MAJOR, Circuit Judge.

These appeals are by Republic Steel Corporation, International Harvester Company and Interlake Iron Corporation (referred to as Republic, Harvester and Interlake, respectively), from a decree of the district court entered June 24, 1957, by which each of the defendants is "Enjoined and Restrained from depositing or discharging and from permitting or causing directly or indirectly to be deposited or discharged into the federal channel of the Calumet River, a navigable stream of the United States, within the territorial jurisdiction of this court, between Stations 105 and 300, industrial solids, including flue dust, without first obtaining a permit from the Chief of Engineers of the Department of the Army of the United States of America, providing for satisfactory conditions for the removal of such future deposits and discharges * * *." Each defendant is "enjoined and ordered to restore to a depth of 21 feet below low water datum for Lake Michigan the federal channel of the Calumet River * * between Stations 105 and 300, by dredging within a reasonable time not exceeding one year the industrial solids or wastes, including flue dust" in said Calumet River. Republic is required to remove 36.78% of 81.5%; Harvester, 36.31% of 81.5%, and Interlake, 26.91% of 81.5% "of the aggregate of the industrial solids or wastes, including flue dust, found in the federal channel of the Calumet River * * *."

The decree was predicated upon an opinion, findings of fact and conclusions of law, entered by the district court following a protracted hearing. United States v. Republic Steel Corporation, 155 F.Supp. 442. These reported findings to which we make reference obviate the necessity for a detailed statement of facts.

The following, taken from the findings, will suffice for the purpose of bringing into focus the issues which we think are decisive. The Calumet River at the point where it connects with Lake Michigan is located approximately 11½ miles south of the Chicago Harbor, which is directly east of the Loop in the City of Chicago, Illinois, and is used by a large number of lake and foreign ships. It extends from Lake Michigan to the junction of the Little Calumet and the Grand Calumet Rivers, and leads via canals to the Illinois River and on to the Mississippi. The natural flow of the Calumet River which was toward the lake has been reversed by the Chicago Sanitary District in order to carry polluted waters away from the lake. Hence, the normal direction of the river flow since 1922 has been away from Lake Michigan, with the exception of short periods of excessively heavy rainfall.

The Calumet River is marked at 100-foot intervals, called "stations." Station 0 is near the Elgin, Joliet and Eastern Railroad bridge and Station 300 is just north of 130th Street. The river channel from Station 0 to Station 300 has a minimum width of 200 feet. The Corps of Engineers of the Department of the Army has been designated by Acts of Congress to maintain in the Calumet River a federal channel to the minimum depth of 21 feet, for the purpose of navigation. Such channel has been continuously maintained since the year 1881.

Harvester is located on the west bank of the river, with a river frontage extending from about 108th to 111th Street. Interlake is located on the east bank of the river, from about 107th to 111th Street, and on the west bank of the river from about 111th to 114th Street. Republic is located on the east bank and extends from 111th to about 122nd Street. All three defendants are and have been for many years engaged in the production of iron and related products. In such production they use iron ore, limestone and coke to produce iron. Each defendant produces coke from coal. Republic and Harvester each produces approximately 500,000 gross tons of iron and 1,300,000 gross tons of steel ingots per year, and Interlake produces approximately 450,000 gross tons of iron per year but no steel ingots.

The trial court found:

"As a result of the production of iron by all three defendants, certain industrial wastes are created, consisting of flue dust containing a high percentage of iron oxide, slag, calcined lime and other solids. In the production of coke and iron and steel products, additional wastes are created, such as coke, breeze, mill scale, and other solids from the many and varied plant operations."

Defendants in their operations pump water in vast amounts from the river. The amount taken from the river and used by the defendants each month is approximately as follows: Republic, 2,500,000,000 gallons; Harvester, 2,655,000,000 gallons, and Interlake, 1,031,120,000 gallons. This water after use is returned to the river through sewers maintained by the defendants. Republic has eight, Interlake five and Harvester fourteen sewers, all emptying into the river. Each of the defendants maintains and operates a tank-type settling basin designed to recover the fine flue dust contained in the water after its use. However, some of this dust escapes and is washed into the sewer and on into the river. There is some water which flows directly into the river through sewers, which has not passed through a settling basin. Expert witnesses testified as to the analysis of samples taken from defendants' sewers and from the river bottom in the vicinity of defendants' mills which showed a high percentage of material assignable to iron and steel mill origin. Much of the solids, generally called industrial waste, is extremely fine, not detectable by the naked eye or even by microscopic examination.

The original complaint filed by the government prayed for a prohibitory as well as a mandatory injunction to compel the defendants to restore the bed of the Calumet River "in front of, or abutting on, their mills or establishments to the original channel depth of twenty-one (21) feet." After the trial had been in progress for almost a month, the government, over objections by the defendants, was permitted to amend its complaint. Such amended complaint prayed for a mandatory injunction compelling the defendants to dredge not only the channel near their plants but all of the channel between Stations 105 and 300, to the original depth of 21 feet. The decree requires the defendants to dredge the channel for the distance and in the manner prayed for in the amended complaint, which means that defendants are required to dredge not only the portion of the channel adjacent to their plants but for a considerable distance both up and down stream. As to Harvester, it includes one-third mile upstream and almost three miles down.

The complaint alleged:

"8. The continued discharge and deposit by defendants, and each of them, of industrial solids and flue dust into the channel of the Calumet River is unlawful and in violation of Sections 403 and 407 of Title 33 of the United States Code.

"9. The continued discharge and deposit by the defendants, and each of them, of industrial solids and flue dust into the channel of the Calumet River, between approximately Stations 105 and 300, constitutes an obstruction of a navigable water of the United States of America, and constitutes and creates an interference with and an obstruction to interstate and foreign commerce and navigation, to the detriment and injury of the public interest."

The court in its conclusions of law stated:

"This action was properly brought because the defendants are discharging industrial solids into the Calumet River, in violation of the Federal Statutes, 33 U.S.C.A. §§ 403, 407, and this constitutes an interference with navigation and commerce." 155 F.Supp. 452

The government in its brief before this court raises the following issue:

"Is the government entitled to an injunction as a matter of law predicated upon the provisions of 33 U.S. C. §§ 403 and 407?"

The government in its summary of argument states:

"The evidence clearly establishes obstruction of the Calumet River by the defendants herein by the practice of discharging industrial solids consisting of flue dust and other materials into the river."

And further:

"The violations by the defendants of sections 403 and 407 of Title 33 United States Code, gives rise to the cause of action for injunctive relief by the United States."

Thus, it appears plain, as was conceded by government counsel in oral argument before this court, that the case was tried and decided on the basis that defendants were and had been violating...