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Reserve Mining Co. v. EPA

Citation: 5 ELR 20596
No. Nos. 73-1239 et al., 514 F.2d 492/7 ERC 1618, 1782/(8th Cir., 03/14/1974) Modified & remanded

This unanimous en banc opinion on the merits follows the court of appeals' temporary opinion, 4 ELR 20598, on its stay of the district court's injunction, 4 ELR 20573, which had ordered Reserve to cease any further discharge of asbestos-bearing taconite wastes into Lake Superior from its plant at Silver Bay, Minnesota. Based on its independent evaulation and balancing of the risks to health and the certain economic benefits of defendant's operations, the court herein modifies the district court's injunction significantly, imposing a strict timetable for reduction of the company's airborne discharges and a far more gradual schedule for the company's development of a plan for on-land disposal of the 67,000 tons of tailings it currently discharges daily into the lake.Finding the factual issues in "delicate balance" and fraught with uncertainties, the court substitutes its own conclusions on many points for the findings of the district court. "In assessing probabilities in this case, it cannot be said that the probability of harm is more likely than not. Moreover, the level of probability does not readily convert into a prediction of consequences. On this record it cannot be forecast that the rates of cancer will increase from drinking Lake Superior water or breathing Silver Bay air. The best that can be said is that the existence of this asbestos contaminant in air and water gives rise to a reasonable medical concern for the public health. The public's exposure to asbestos fibers in air and water creates some health risk. Such a contaminant should be removed." Reserve's discharges violate state air pollution laws and the Federal Water Pollution Control Act and the Refuse Act, but they do not constitute a nuisance under the federal common law of nuisance as the district court ruled, 394 F. Supp. 233. The district court abused its discretion in ordering immediate closure of the plant. Reserve shall have a "reasonable time," roughly a year, to stop discharging its wastes into Lake Superior; this shall include time for it to find an appropriate on-land site and construct the necessary facilities. Reserve must, however, more immediately to come into compliance with the state air pollution standards. In an addendum, issued at a later date but incorporated in the opinion, the court of appeals rebukes the district judge for holding an "irregular" hearing on March 15, 1975, and for ignoring this opinion; it insists on full compliance with the "letter and spirit" of the opinion.

For counsel, see 4 ELR 20573-74.