Reserve Mining Co. v. Minnesota Pollution Control Agency

No. 05011 (Minn. Dist. Ct. December 15, 1970)

Plaintiff taconite mining company granted a variance from defendant's recently promulgated Minnesota Water Pollution Control Regulation WPC 15(c)(6) which forbids discharges of suspended solids in Minnesota waters of concentrations above 30 milligrams per liter (mg./1.). The variance allows the present discharge of 14,000 milligrams of tailings per liter of water into Lake Superior to continue. Application of the 30 mg./1. standard to plaintiff's discharges would be invalid as an unconstitutional taking of property without due process of law. Nevertheless, plaintiff is ordered to submit plans for defendant's approval indicating how plaintiff will modify its taconite discharges so as to abate pollution in accordance with the court's detailed order.

Counsel for Reserve Mining Co.
Edward T. Fride
C. Byron Halje
Sullivan, Hanft, Hastings, Fride and O'Brien
1200 Alworth Building
Duluth, Minnesota 55801
(218) 722-4766

Counsel for Minnesota Pollution Control Agency

Jerome D. Truhn Solicitor General
Lane C. Fridell Special Assistant Attorney General
160 State Office Bldg.
Saint Paul, Minnesota 55101
(601) 221-2961

[1 ELR 20073]

Eckman, J.

The above-entitled action was instituted pursuant to the provisions of the Minnesota Water Control Act, Minnesota Statutes Section 115.05, as an Appeal by Appellant from the adoption by the State of Minnesota of Regulation WPC 15, filed with the Secretary of State and Department of Administration on June 30, 1969 and approved by the U.S. Secretary of the Interior on November 26, 1969. The Appeal alleges (1) that the requisite statutory procedure for the adoption of WPC 15 has not been complied with and that, therefore, said regulation is not applicable or enforceable against Appellant Reserve Mining Company, (2) that Subd. (a)(4) and (c)(6) of WPC 15 are illegal, unreasonable, arbitrary and invalid as applied to Appellant, (3) that Subd. (a)(4) and (c)(6) of WPC 15 are not applicable to Appellant, and (4) that if said Subd. (a)(4) and (c)(6) are binding and applicable to Appellant, that in that event, Respondent should be ordered to issue a Variance pursuant to Subd. (a)(5) of the Regulations, because enforcement thereof would cause undue hardship and strict conformity would be unreasonable, impractical or not feasible under the circumstances.

Respondent in its Return denies generally the allegations of the Appeal, alleging various affirmative defenses which have been adjudicated by subsequent Orders of this Court and are therefore moot. Respondent in its Return counterclaimed against Appellant, claiming that Appellant is presently, and has been in the past, polluting Lake Superior in violation of Minnesota Statutes Chapter 115 and Regulation WPC 15, thereby creating a public nuisance, and prays for an Order of the Court setting a reasonable and just time schedule for compliance by Appellant and a permanent injunction thereafter. Prior to the trial of the cause on the merits, various Motions were made by the parties, Hearings were held thereon before the Court, and the Court issued its Orders with regard thereto. On February 3, 1970, after hearing held on January 28, 1970, the Court issued its Order denying Respondent's Motion for a Change of Venue from Lake County to Hennepin County, ordering the trial of this action by the Court, without a jury, during the May, 1970 General Term of Court, and directing the Respondent to forthwith serve its required Pleading. The Court, on April 6, 1970, after Hearing held on February 25, 1970, issued its Order denying Respondent's Motion to dismiss the Appeal on the alleged grounds that the Notice of Appeal failed to state a claim upon which relief can be granted and that the Court lacked jurisdiction over the subject matter because the Appellant failed to comply with the requirements of Minnesota Statutes 115.05, Subd. 3 with respect to the time for service of its Notice of Appeal. On the Motion of Appellant, after Hearing held on April 22, 1970, the Court, on April 30, 1970, issued its Order restraining and enjoining the Respondent and the Minnesota Commissioner of Conservation

"from holding the hearings or conducting any proceedings contemplated by the 'Notice of Commencement of Contested Case (Case No. W70-1) — In the Matter of the Revocation of Permit No. 112, Reserve Mining Company, Inc.' and 'Notice of Commencement of Contested Case — In the Matter of the Revocation of Permit No. 47-12 (796), Reserve Mining Company, Inc.' insofar as said proceedings are premised upon and allege violation of Minnesota Administrative Regulation WPC 15 or otherwise seek to determine the issues within this Court's jurisdiction raised by the Notice of Appeal, Return and Counterclaim until a determination is made by this Court after trial with respect to said issues."

After hearing held on April 22, 1970, the Court issued its Order dated May 14, 1970, directing that the trial of this action commence on June 22, 1970, in the Lake County Court House at Two Harbors, Minnesota, and requesting that the parties and the respective counsel cooperate so as to complete any necessary pre-trial proceedings prior to that date. At each of the above-mentioned hearings, Jerome D. Truhn, Esq., Assistant Attorney General of the State of Minnesota, appeared for the Respondent, and Edward T. Fride, Esq. of Sullivan, Hanft, Hastings, Fride & O'Brien, appeared for the Appellant. At the above-mentioned hearing on April 22, 1970, Donn D. Christensen, Esq. appeared on behalf of the Minnesota Department of Conservation.

Trial of this action upon the issues raised by the Notice of Appeal and Return and Counterclaim commenced before the Court on June 22, 1970 and continued through August 5, 1970. Appellant appeared at the trial by its counsel, Edward T. Fride, of Sullivan, Hanft, Hastings, Fride & O'Brien. Respondent appeared at the trial by its counsel, Jerome D. Truhn, Esq. and Lane Fridell, Esq., Assistant Attorneys General of the State of Minnesota.

The Court of its own Motion and upon agreement of the parties received additional evidence, and the issues of fact were tried de novo.

The Court, on August 5, 1970, took the matter under advisement. Thereafter, briefs on the facts and law were submitted by the parties, and oral arguments were heard on October 2, 1970, Edward T. Fride, Esq. again appearing for the Appellant, and Jerome D. Truhn, Esq. and Lane Fridell, Esq. appearing for the Respondent.

The Court, having heard and given due consideration to all of the evidence, the arguments of counsel, and given proper regard to the prima facie reasonableness and validity to be accorded to the Respondent's actions, all the files, records and proceedings herein, and being fully advised in the premises, now makes the following Findings of Fact, Conclusions of Law, and Order for Judgment:

FINDINGS OF FACT

1. Appellant, Reserve Mining Company, is a Minnesota taconite mining and beneficiating company. In connection with its operations, Appellant discharges industrial waste, called tailings, into Lake Superior at Silver Bay, Lake County, Minnesota, pursuant to Permits issued by the Corps of Engineers (United States Department of the Army), the Minnesota Department of Conservation, and the Minnesota Water Pollution Control Commission.

2. The Respondent, Minnesota Pollution Control Agency, is an agency of the State of Minnesota created by Minnesota Laws 1967, Chapter 882 (codified as Minnesota Statutes, Chapter 116), as the successor of the Minnesota Water Pollution Control Commission. The Minnesota Water Pollution Control Commission was created by Minnesota Laws 1945, Chapter 395 (codified in 1961 as Minnesota Statutes, Chapter 115).

3. The Permits of the Minnesota Water Pollution Control Commission and the Minnesota Department of Conservation were issued to Reserve on December 16 and December 18, 1947, respectively, after several joint public hearings were conducted by the two State agencies commencing June 5, 1947, and ending November 4, 1947. During this period prior to the issuance of the Permits, extensive testimony was taken and extensive studies and investigations made by both State and Federal Agencies as well as Appellant as to the anticipated effect of the proposed discharge upon Lake Superior. The matter of the violation and/or termination of those Permits is not a direct issue in this action, but are necessarily proper evidence of facts to be considered by the Court in the final determination herein.

4. The Permit issued by the Minnesota Department of Conservation relates to the appropriation or use of the waters of Lake Superior. The [1 ELR 20074] Minnesota Water Pollution Control Commission Permit authorizes the discharge of industrial waste (tailings) into Lake Superior. Both Permits were duly issued in accordance with law. The latter Permit was issued under and pursuant to Minnesota Statutes 115.03, Subd. 1. In April, 1948, after the issuance of the State Permits, the Corps of Engineers issued its Permit to Reserve Mining Company authorizing the construction of docks, breakwaters, and the deposition of tailings into Lake Superior.

5. The terms and conditions of the State Permits are essentially identical. Subd. (i) of each Permit provides that "the Permit shall be for a term extending without limitation until the Permittee shall surrender the same, or until revocation as hereinafter provided. * * *" In light of the substantial investment to be made by Reserve Mining Company upon issuance of the Permits and to provide Reserve Mining Company with legal protection against unilateral modification, revocation, or termination of the Permits, Subd. (1) of each Permit was issued providing:

"The Permit shall be subject to revocation only for violation of the conditions hereinbefore set forth. Before any such revocation the Water Pollution Control Commission (or the Commissioner of Conservation) or its successor in authority shall hold a public hearing upon charges specifying the alleged violation, of which at least 30 days' notice in writing shall be given to the permittee, and if such violation can be corrected the permittee shall be given a reasonable opportunity to correct the same."

Each Permit specifies a 9 square mile "zone of discharge," which is the area within which the tailings are to enter the Lake, it having been expected and intended that the tailings would be carried down into the depths of the great trough (600 to 900 feet deep) in Lake Superior extending for several miles outside the "zone of discharge." The only relevant conditions of the Permits for purposes of this Appeal are those contained in Subdivisions (b) and (d).These read as follows:

"(b) The tailings discharged from said taconite beneficiation plant shall consist only of the crushed or ground residue of taconite as hereinbefore described after extraction of iron ore therefrom, with the water in which such residue is suspended, and neither such tailings nor the water returned from the power plant shall include any material quantities or matter soluble in water, organic matter, oil, sewage, or other waste except such taconite residue."

* * *

"(d) Such tailings shall not be discharged so as to result in any material clouding or discoloration of the water at the surface outside of said zone except during such time as turbidity from natural conditions in the adjacent portions of the lake outside of said zone may be caused by storms, nor shall any material adverse effects on fish life or public water supplies or in any other material unlawful pollution of the waters of the lake or in any material interference with navigation or in any public nuisance outside of said zone."

6. In 1956, and again in 1960, upon application of Reserve Mining Company, the Minnesota Water Pollution Control Commission and Minnesota Department of Conservation amended their respective Permits. Both the 1956 and 1960 amendments increased the amount of water which could be appropriated from and the amount of waste water and tailings which could be discharged into Lake Superior by Reserve. Neither the 1956 nor the 1960 amendments altered the above-quoted conditions of the Permits. The Federal Permit has also been expanded by various amendments since its original issuance.As in the case of the original Permits, the amendments of the State Permits in 1956 and 1960 were adopted after extensive public hearings on the questions of reasonableness of the discharge and any possible effects on Lake Superior.

7. In reliance upon the State and Federal Permits, as contemplated by the Appellant and the agencies issuing the Permits prior to such issuance, the Appellant constructed its plant at Silver Bay, Minnesota. The Appellant also developed the Villages of Babbitt and Silver Bay and their schools and other necessary facilities where many of the Appellant's employees live with their families, as do the merchants, doctors, teachers, and so forth who serve them. The Appellant's capital investment exceeds $350,000,000. As of June 30, 1970, Appellant had 3,367 employees. During the calendar year 1969, its total payroll was approximately $31,700,000; and it expended the sum of $27,400,000 for the purchase of supplies, and paid State and local taxes amounting to $4,250,000. The Appellant's annual production of 10,000,000 tons of taconite pellets represents approximately two-thirds of the required pellets used by Armco and Republic Steel, the sole owners of Reserve, 15% of the production of the Great Lakes area, and about 12% of the total production of the United States. Between four and six people are supported by each job in the mining industry, including those directly involved in the mining industry and those employed in directly and indirectly related fields.

8. The principal reasons for the location of Appellant's plant at Silver Bay rather than the mine site near Babbitt were the lack of necessary water, the lack of an appropriate area for tailings disposition at the mine site, and other economic factors.

9. The concept upon which the State and Federal Permits were sought by and issued to Appellant was the concept that the tailings effluent discharged into Lake Superior would form a so-called heavy density current providing efficient transportation of the tailings into the depths of the great trough in Lake Superior. This phenomenon involves the formation of a current by the presence of tailings in the discharge water which renders it heavier than the surrounding waters of Lake Superior. The strength of the heavy density current and the velocity with which it settles to the bottom hinges on the relative densities of the discharge effluent and the surrounding waters of the Lake. The greater the content or concentration of tailings in the discharge water, the more dense the discharge water and the stronger the density current and the more efficiently and effectively it will transport the tailings into the depths of Lake Superior.

10. Reserve Mining Company is and has been discharging, since the last amendments to the Permits, approximately 67,000 tons per day of its industrial waste, comprised principally of taconite tailings (crushed rock residue from its taconite ore beneficiation process) suspended in 600,000,000 gallons of water per day at a concentration of approximately 28,000 mg./1. Approximately one-half of these suspended solids are deposited on the delta formed off-shore thereby, and the balance into the waters of Lake Superior off the edges of the delta at a concentration of approximately 14,000 mg./1. The delta as it now exists has become part of the shore and as such is not now a part of Lake Superior. This present discharge is obviously greatly in excess of the 30 mg./1 limit of suspended solids and the turbidity limit of 25 mg./1 contained in WPC 15. If the concentration of tailings in the Appellant's discharge were reduced to comply with such limitations, the formation of the heavy density current transporting the tailings to the bottom of the Lake would be precluded, resulting in the dispersion and mixing of the tailings in the surface water of the Lake before the tailings would eventually, if ever, settle. The effect of the application of Section (c)(6) of WPC 15 to the Appellant's discharge would be to prohibit such discharge.

11. The evidence, including a tailings inventory, establishes the fact that after 15 years of operation and discharge by Appellant, Appellant's discharge does form a strong heavy density current transporting the tailings into the depths of Lake Superior and depositing approximately 90% of them in the great trough; that the heavy density current is the predominant current in connection with the Appellant's discharge; that lake and surface currents as well as the claimed phenomenon of "upwelling" have some significance as far as the distribution of tailings on the Lake bottom is concerned; and that a substantial portion of fine material that may escape the heavy density current, particularly during periods of thermocline, probably settles out on the Lake bottom after a

12. Construction of the Appellant's plant was completed and operations commenced in 1955. Prior to that time, extensive studies and investigations of Lake Superior were made by the Minnesota Department of Health and Minnesota Department of Conservation to establish the conditions existing in the Lake prior to the commencement of operations as an aid in determining any possible effect of the discharge on the Lake after the commencement of operations. Since the commencement of operations, the Appellant's discharge of tailings has been subject to extensive surveillance and monitoring by State Agencies, including the Minnesota Water Pollution Control Commission, the Minnesota Pollution Control Agency, the Minnesota Department of Conservation, and the Minnesota Department of Health, and by the Appellant, and numerous studies and reports concerning the discharge and its possible effect on Lake Superiorhave been made by the agencies and Appellant.

13. In 1965, the Federal Water Pollution Control Act was amended by the addition of the provisions of 33 USCA, Section 466g(c)(1), and other provisions, providing for the promulgation and adoption, after public hearings, of Federal-State Interstate Water Quality Standards. On or about February 21, 1966, then Governor Karl Rolvaag filed on behalf of the State of Minnesota a letter of intent to comply with the Federal Act by the adoption of Interstate Water Quality Standards.

[1 ELR 20075]

14. Since the enactment of Minnesota Laws 1945, Chapter 395, Section 3, codified in Minnesota Statutes 115.03, Subd. 1, Minnesota Statutes have contained a provision authorizing the adoption of "reasonable pollution standards" by the Respondent and its predecessor. By the enactment of Minnesota Laws 1963, Chapter 874, codified in Minnesota Statutes Sections 115.42 et seq., procedures and additional guide lines for the adoption of standards were established. By enactment of Minnesota Laws 1967, Chapter 882, Section 7 (codified in Minnesota Statutes 116.07, Subd. 6) certain guide lines were further established and reiterated. The procedures established include "public hearings upon due notice" prior to the adoption of standards, which procedures have been substantially complied with by Respondent.

15. On or about May 8, 1967, the Minnesota Water Pollution Control Commission, after public hearings conducted during 1966 and 1967, adopted its version of WPC 15. This version contained neither Section (c)(6) nor the anti-degradation clause of (a)(4) of the Respondent's version of WPC 15 hereinafter referred to. The Commission's version of WPC 15 was submitted to the Secretary of the Interior for approval under the Provisions of 33 USCA, Section 466g(c)(1) and on or about August 7, 1967, the Secretary of the Interior refused to approve such version. Thereafter, the Minnesota Water Pollution Control Commission was succeeded by, and its functions transferred to, the Respondent as provided in Minnesota Statutes Section 116.02, Subd. 5.

16. The period following the Secretary of the Interior's refusal to approve the Minnesota Water Pollution Control Commission's version of WPC 15 was a period of negotiations by and between the Department of the Interior and the Respondent during which the Department of the Interior urged the Respondent to include so-called effluent standards, in effect proscribing limitations on a discharge or effluent itself regardless of any effect on the receiving waters, and an anti-degradation clause in its version of WPC 15. On or about April 8, 1969, the Respondent tentatively adopted its version of WPC 15, including Section (c)(6), constituting an effluent standard, and the anti-degradation clause of (a)(4), subject to the approval of the Secretary of the Interior. Thereafter, following a period of continued negotiations between the Respondent and the Department of the Interior relative to the provisions of WPC 15, the Secretary of the Interior on November 26, 1969, approved the Respondent's version of WPC 15.

17. On December 24, 1969, Appellant's Notice of Appeal herein was duly served upon the Respondent and was thereafter filed with the Clerk of the above-named Court, all as required by law. On February 13, 1970, the Respondent filed its Return, Affirmative Defenses, and Counterclaim. The Counterclaim alleges, among other things, that Appellant is "polluting Lake Superior in violation of Minnesota Statutes Chapter 115."

18. Minnesota Regulation WPC 15 as approved by the Secretary of the Interior on November 26, 1969, constitutes a final order, rule, regulation or other final decision of the Respondent.

19. Appellant is a person who is or may be adversely affected by Minnesota Regulation WPC 15, or portions thereof, within the meaning of Minnesota Statutes Chapter 115.

20. The County of Lake, State of Minnesota, is the County in which the premises affected by such final order, rule, regulation, or other final decision are situated.

21. The District Court, County of Lake, Sixth Judicial District, State of Minnesota, has proper venue of the action herein.

22. This Court has jurisdiction of the parties hereto and jurisdiction of the subject matter hereof.

23. The Notice of Appeal and Counterclaim herein state claims against each other upon which relief can be granted.

24. The direct issue of the purported compliance or violation of the Permits is not before this Court in this action.Hearings on proceedings contemplated by the two "Notice of Commencement of Contested Case" referred to on page 2 of these Findings are separate and distinct procedures which were enjoined by this Court until this action has been completed by its Order of April 30, 1970. This fact does not preclude this Court from considering the terms, circumstances, and effects of the granting of said Permits as material and relative evidence in the final determination of the respective merits of Appellant's claims and Respondent's counterclaim herein.

25. The promulgation and adoption of Regulation WPC 15, in and of itself, is not a constitutional violation of due process. Immediate application and enforcement thereof against Reserve Mining Company without granting that company a reasonable opportunity to adjust and modify its mode of operation would amount to a constitutional violation and a "taking of property without due process of law."

26. Appellant's discharge of taconite tailings into Lake Superior is not a "disposal system or treatment works" within the meaning of Section (a)(1) of WPC 15 or M.S. Chapter 115, and is, therefore, not exempt from the provisions of WPC 15 on that ground.

27. Respondent has the authority and the obligation, if justified, to apply the "Variance From Standards" as set forth in WPC 15 (a)(5), and Appellant has, by the allegations in its Appeal and Prayer for Relief, in effect made application to this Court for relief in the form of a Variance.

28. After 15 years of operations and discharge of tailings into Lake Superior by the Appellant, the evidence before the Court establishes that said discharge has had no measurable adverse or deleterious effects upon the water quality or use of Lake Superior insofar as its drinking water quality, any conditions affecting public health, affecting fish life or the reproduction thereof, or any interference with navigation.

29. Appellant's discharge of tailings into Lake Superior has had a measurable effect upon Lake Superior and the use thereof in regard to:

(1) The aesthetic enjoyment of the Lake by the increase of the "green water phenomenon" both within and without the zone of discharge as described in the Permits.

(2) A decrease in the presence of Pontoporeia, commonly known as scud, in the vicinity of the zone of discharge. This fish food used primarily by smelt has had only a minimal and immaterial effect on the fish population of the Lake.

30. A small percentage of the tailings discharge in the form of fine particles of four microns or less have escaped the heavy density current and have been dispersed to other parts of the Western Arm of Lake Superior. The eventual settling rate of these fine particles has not been established convincingly by the evidence.

31. Subd. (a)(4) of WPC 15 is not applicable to, nor enforceable against, Appellant. Respondent concedes in its Reply Brief on page 74 that this so-called anti-degradation clause applies only to dischargers which are new or expanded after the date of its adoption by the State, June 30, 1969. This concession is pursuant to M.S. 115.42, which states as follows: "It is the purpose of Laws 1963, Chapter 874 to safeguard the waters of the State from Pollution by: (a) preventing any new pollution; . . ."

32. The immediate application or enforcement of WPC 15, Subd. (c)(6) against Appellant would be unreasonable, arbitrary, and capricious, and requires the granting of a Variance excusing Appellant from conformity thereto until the further Order of this Court, pursuant to subsequent modifications in the discharge process hereinafter referred to.

33. Minnesota Statute 115.01, Subd. 5, includes in its definition of pollution contamination which is either actual or potential. The Court's Findings and Order relating to "actual pollution" are set forth herein. With respect to possible future "potential contamination," the evidence is in such conflict that the Court would have to indulge in speculation in order to make a finding as to such future possibility. The Court is precluded under law from indulging in such speculation.

34. Lake Superior is now an oligatrophic body of water and enjoys the distinction of being one of the lakes with the highest quality of water in this hemisphere. This fact was conceded by the testimony of both parties. Neither is there any dispute of the fact that any material deterioration or depreciation of the present water quality cannot be tolerated. And so, even though there has been no substantial or convincing evidence of deterioration to date, the Court cannot disregard the numerous scientific opinions expressed to the effect that the present method of discharge constitutes a possible or potential source of pollution which, if continued over a long period of time, might result in the material deterioration of the water quality of Lake Superior.

35.In view thereof, the Court finds that the continuance of the present method of discharge for any substantial period of time, and particularly for the next forty-year expected life span of Reserve's operations, is intolerable and that substantial modifications must be put into effect. The Court makes no Findings of the nature or extent of such modification in the method of discharge because of the lack of any substantial or determinative evidence relative thereto and the natural limitations of the Court's ability to so determine.

36. Pursuant thereto, adoption of such modified methods of discharge require the immediate attention of Reserve Mining Company and negotiations and study by Reserve's and Respondent's agencies, with a reasonable time to arrive at a mutually-acceptable plan between Reserve and the Minnesota Pollution Control Agency; that to insure the establishment of such a mutually-agreeable modification and to prevent a stalemate in such negotiation, it is necessary that the Court retain jurisdiction of this matter.

And when such modified methods of discharge have been put into [1 ELR 20076] operation, the gravity of the ecological concern dictates that a constant and diligent monitoring and scrutiny of the water quality of the Lake must be maintained by both Appellant and Respondent by the use of the most sophisticated scientific methods of testing.

CONCLUSIONS OF LAW

1. The requisite statutory procedure for the adoption of WPC 15 has been complied with, and said Regulation per se is applicable against appellant Reserve Mining Company.

2. Regulation WPC 15, Subd. (a)(4) is not applicable or enforceable against Appellant Reserve Mining Company.

3. Regulation WPC 15(c)(6) is unreasonable, arbitrary, and invalid as applied to Appellant Reserve Mining, and Minnesota Pollution Control Agency shall grant a Variance From Standards as to said Section (c)(6) until the further Order of this Court.

4. No conclusion is drawn as to whether or not Reserve Mining Company is polluting Lake Superior. Instead, the Court concludes that the present method of discharge of tailings from its plant at Silver Bay, Minnesota shall be altered and modified by Appellant Reserve Mining Company to the extent that the disposition of fine tailings into Lake Superior and the distribution thereof into areas outside of the so-called "great trough" is discontinued.

5. Pursuant thereto, Appellant Reserve Mining Company shall submit to Minnesota Pollution Control Agency on or before May 15, 1971, for its approval, such plans for modification as are necessary to accomplish the result set forth in paragraph 4 above. After such approval by Minnesota Pollution Control Agency, Reserve shall have two additional years in which to build, install, and put into operation such approved modified method of tailings discharge.

6. The District Court shall retain jurisdiction of this matter for the purpose of insuring the implementation and good-faith negotiations towards a satisfactory modification of discharge and a reasonable and equitable solution to this controversy. To that end, this Court, upon application of either party, shall exercise its authority to take further evidence, if necessary, and to render a final decision therein in the event that no mutual agreement as to such modification can be reached between the parties.

7. The attached Memorandum is hereby made a part of these Findings of Fact and Conclusions of Law.

LET JUDGMENT BE ENTERED ACCORDINGLY, but let the Entry of Judgment be stayed for a period of 30 days from the date hereof.

MEMORANDUM

This Court in its Memorandum in this matter dated April 30, 1970 in connection with its Order granting a temporary injunction stated the following.

"This Court feels that the time has come to brush aside all legal technicalities and procedures that may impede a resolution of these questions without further delay by taking the problem out of the public and political arena into the court for a full and comprehensive judicial review, where the interests of both the public and industry can be fully explored and protected."

The Court had confidently expected that before trial, the parties would, by putting their scientific heads together, negotiate and agree on some mutually-acceptable modification of Reserve's discharge process. This was not done. The hope still existed that after the commencement of the Trial and both parties had fully disclosed their positions, a compromise and settlement would be accomplished. Not long after the Trial began, however, it became apparent to the Court that a strictly adversary atmosphere prevailed between the parties, which intensified as the parade of witnesses (14 by Reserve and 15 by Respondent) and voluminous exhibits (185 by Reserve and 100 by Respondent) were presented and heard. Instead of the Court being an instrument of compromise, negotiation, and settlement, both parties assumed an adamant position demanding, on the one hand, the stamp of approval on Reserve's operation for 40 more years, and on the other hand, a decision that would in effect have closed down Reserve Mining Company's operation.

Probably no other trial in the history of this State has produced a more impressive array of scientists and experts expounding on their particular fields of expertise. With few exceptions, each had degrees showing years of education, series of publications and memberships on national and international committees and government commissions, together with years of experience in their respective fields of ecology and limnology (including chemistry, bacteriology, biology, etc.), sociology, economics, and cost accounting.

In view of this profound assistance, it would appear that the Court should have had little difficulty in arriving at a logical and determinative solution. Unfortunately, however, this was not so. Contradictions in findings and opinions in varying degrees became the rule. Appellant reminded the Court by inference that Respondent's witnesses were brought into the case as "Johnny-Come-Latelys" to render opinions based on other scientists' disqualified tests and conclusions and were propounded by pressure exerted by governmental superiors. Respondent inferred that Appellant's experts testified and reached conclusions expected of them as paid employees of Reserve. In weighing the credibility of these witnesses by the usual standard, the Court finds no merit in these accusations except insofar as their testimony may have been unconsciously influenced by their apparent positions of advocacy. Certainly, it must be made crystal clear that in no instance did the Court find any indication of prostitution of themselves or their professions by any of the witnesses.

Through all this maze of conflicting testimony and evidence, the Court still had only a few clear-cut and well-defined issues to determine. In substance, there were three:

(1) Is WPC 15, Subd. (a)(4), commonly known as the anti-degradation clause, unreasonable, arbitrary, and capricious as applied to Reserve?

(2) Is WPC 15, Subd. (c)(6), commonly known as the effluent standard, unreasonable, arbitrary, and capricious as applied to Reserve?

(3) Is Reserve guilty of polluting Lake Superior by its present discharge of tailings, and thereby the proper subject of injunction?

A determination of these main issues necessarily involved consideration of a number of collateral issues, including:

(1) The relevancy and application of the Permits granted in 1947 and extensions thereof.

(2) The economic feasibility or the balancing of the economic impact upon Reserve and the communities involved as against the ecological future of Lake Superior.

(3) The procedural positions of the parties as to burden of proof relative to the Findings and Regulations of an administrative body, and

(4) The applicability as a whole of Regulation WPC 15 per se in regard to its constitutionality and regularity in adoption, as applied to Reserve.

A consideration of the above correlative issues should be discussed before the three main issues:

(1) Relevancy and Application of the Permits.

The position of Respondent that the Court is estopped from considering the language, circumstances, and effects of the Permits in its determination of this lawsuit is untenable. The Permits were received into evidence as material and relevant. A consideration of these were vital as to the present position of the parties, the history of the operation under the Permits and the language thereof, particularly as they relate to the alleged unreasonableness of WPC 15(c)(6). Furthermore, the main thrust of both Appellant's and Respondent's presentations revolved around the language and parameters of the Permit, particularly as to the word "material" — material discoloration, material adverse effects, material unlawful pollution, material interference with navigation, and finally, no material quantities of matter soluble in water, organic matter, oil, sewage, or other waste. Also, the extent of discoloration, turbidity, and fine tailings dispersion set forth in the Permits was necessarily involved.

(2) Balancing of Ecological and Economic Factors.

It seems highly unlikely that a similar application by Reserve today for the Permit issued in 1947 would be granted. The public, in only a few short years, has been alerted and alarmed over the disastrous effects upon our environment from what appears to have been a careless and callous disregard in the past of our ecological future. A dedication and concern in this matter must continue. This does not mean that our economic well-being must be sacrificed on the altar of emotionalism in order to maintain our environment. There is no reason why intelligent and fair-minded men cannot by their expertise relate and each be responsive to the other. There is no place in our society today for extremists in this matter of concern. Neither a greedy industry that knowingly, willfully, and callously pollutes our environment for profit, nor the emotional purists who would denounce any practical use of our resources for fear it may pollute, can be tolerated. We must assume that if man is to continue to live on earth, he must use the natural resources the Creator provided for his sustenance and enjoyment, and so must he use the natural resources wisely and in such a manner that they are preserved and not wasted.

This fact of life was recognized by the grantors of the Permit to [1 ELR 20077] Reserve when they repeatedly required only a material compliance to insure continued high water quality of Lake Superior. So also was it recognized by the framers of WPC 15, which is replete with language which amounts to "escape hatches," such as "in order to conform to public interest" — "necessary economic or social development" — and as in Subd. (a)(5) Variance From Standards, where it says "where strict enforcement would cause undue hardship." Mr. Badalich summed it up when he testified, "M.W.P.C. has no desire to close down Reserve." Obviously, any decision which would result in that would be disastrous to the entire economy of Northeastern Minnesota. And on the other hand, it is just as obvious that convincing evidence of the pollution of Lake Superior by Reserve would demand that that price be paid, if necessary, or unless the pollution cannot be stopped. The burden of striking this balance is great. This Court is convinced that its Conclusions are justified.

(3) Procedural Positions of the Parties.

The claim of Appellant that Respondent should be estopped from proving pollution by reason of the Permits and no determination as to their violation having been made has no merit. To hold otherwise would necessarily result in the dismissal of Respondent's Counterclaim.

Respondent has the burden of proving by a fair preponderance of the evidence its allegations of pollution by Reserve. Respondent contends that the Findings and Conclusions confirming WPC 15, following Hearings on March 9, 1970, April 13, 1970, May 11, 1970, June 8, 1970, and June 19, 1970, pursuant to M.S. 115.05, as amended, are entitled to full faith and credit as prima facie evidence. The Court, on the authority of Minneapolis Van and Warehouse Co. vs. St. Paul Terminal Warehouse Co., 180 N.W. (2nd) 175, denies this contention. Significant also are the circumstances and timing of these Hearings. They were evidently held to comply with M.S. 115.05, the last being conducted only two days before the start of this Trial and while both parties were engaged in last-minute preparations.

(4) The Constitutionality of WPC 15.

No further comment on the Court's Findings and Conclusions herein should be necessary as they are self-explanatory.

MAIN ISSUES

1. Reasonableness of WPC 15(a)(4).

The non-applicability of this section to Reserve is conceded by Respondent. It is recognized that it does not apply to any discharges existing on June 30, 1969.

2. Reasonableness of WPC 15(c)(6).

Limiting the concentration of the discharge effluent to 30 ml/l would necessarily require either (1) the dilution of the effluent by the addition of millions of gallons of water or (2) complete cessation of discharge into the Lake. Dilution to the required degree would mean:

(a) Abandonment of the principle of the heavy density current and the diffusion of all the tailings into the surface waters and dispersion to all parts of the Lake, and

(b) No reduction in total amount or composition of the effluent from what it is today and thereby have no remedial effect on any alleged pollution.

With that in mind, it would appear that if complete cessation represents the only possible compliance with this regulation, it is capricious and unreasonable and should not be enforced against Reserve.

3. Counterclaim — Pollution of Lake Superior

The word "pollution" is subject to varied definitions, depending upon the intent and position of the definer. Under the dictionary definition — "an act of making or rendering unclean" — any human contact at all could be considered pollution. Robert S. Burd, Respondent's witness and Deputy Assistant Commissioner for Operations of Federal Water Quality Administration, defined pollution as follows: "Anything that lowers the natural or existing quality of water." These definitions, being of such a general nature, were of no assistance. Dr. Charles Wurtz, Appellant's witness, Professor of Biology at LaSalle College and former member of the Academy of Natural Sciences, defined pollution as "a product of legislation." It was, therefore, necessary to resort to the statute for its definition. M.S. 115.01, Subd. 5, defines pollution as follows: "Pollution means the contamination of any waters of the State so as to create a nuisance or render such waters unclean, or noxious, or impure so as to be actually or potentially harmful or detrimental or injurious to public health, safety or welfare, to domestic, commercial, industrial or recreational use, or to livestock, wild animals, fish or other acquatic life." In applying this statutory definition to the voluminous evidence, both oral and documentary, the Court concludes that there was lacking the required substantial evidence by Respondent to convince this Court that the discharge of tailings by Appellant, after 15 years of operation, had "rendered the waters unclean or noxious or impure thereby." The only exception of convincing quality was the increased display of the "green water phenomenon" and the disappearance of a proportion of the scud, a small shell creature which serves as food for smelt and small trout. Although measurable, these conditions were of minimal significance or materiality.

The question of potential harm to the lake water then became the greatest concern of the Court. This facet also became the main thrust of Respondent's attack. Respondent's experts, while admitting there had been no measurable deterioration of water quality to date, maintained that the chemical and bacterial content of the tailings were of such significance that they would result in eutrophication by nutrient feeding of algae, and paradoxically, the reduction of algae in the zone of discharge as a limiting factor. They opined, therefore, that the tailings had or would have a pollutant effect on the Lake. These findings and opinions were denied by Appellant's experts.

And so the Court, completely lacking in personal expertise, found itself in the impossible position of being required to analyze, weigh, and choose between these controversial points of view. There was scant consolation to the Court in the remark of Dr. Donald Mount who, evidently, recognizing the Court's dilemma, stated while testifying, "The Court has my sympathy." In view of the absence of definitive measurements of pollution in quantity or time, with consideration to the assimilative capacity of Lake Superior, the Court would be indulging in speculation to make a determination that the discharge was or was not a potential source of pollution to Lake Superior.

Nevertheless, the vital importance of maintaining the Lake in its present oligatrophic state demands that definitive steps be taken to remedy any condition that may possibly be a source of even potential irremedial damage. It is in fact a socio-legal problem and is entitled to those remedies. And so, in veiw of the refusal or inability of the parties to negotiate, compromise, or agree on even temporary solutions, the Court has concluded that Reserve Mining Company's present method of discharge must not be allowed to continue as it has over the next 40 years — and neither must Respondent be given the instrument that would in effect require prohibitive compliance. The Court's continuing jurisdiction is essential to insure the establishment of a modified method of discharge by good-faith cooperative discussions between the parties.

The type and extent of Reserve's modifications are not for the Court to dictate at this time. The minimum efforts in that regard are set forth in some limited detail in Appellant's Exhibit 67 entitled "Engineering Task Force Report," and will require Reserve to assume the burden of expending millions of dollars in capital outlay and expense of operation. The public is entitled to this. In the judgment of this Court, any modification must insure the flocculation of the fine tailings and the deposit of all the tailings by conduit to the floor of the great trough, where they will remain, eliminating thereby their dispersion to other parts of Lake Superior, and elimination of complaints of aesthetic loss, net or shore slime, drinking water contamination, or eutrophication by increased algal growth. In support of this solution, the Court has gleaned from the Respondent's experts that the deposit of the tailings on the Lake floor in a relatively quiescent condition would substantially remove their apprehensions as to their effect upon the Lake's ecology, aesthetics, or navigation. Dr. Mount stated that the physical filling was a small factor. Dr. Thomas suggested that ultra-fine materials be treated. Mr. Badalich suggested the use of mechanical means, such as flocculation. Dr. Risley stressed the bad effect on the Lake by small particulate spreading. And Dr. Shapiro was of the opinion that greater concentration of tailings would tend to inhibit or produce die-off in algal growth.

This has been a difficult decision. The Court recognizes that it probably will not please both parties to this lawsuit nor all segments of the public. But it is satisfied that it is a step in the right direction. The Court urges a continued monitoring of the discharge and a diligent pursuit of more sophisticated testing devices. The eventual modification, as approved by the Court, will not necessarily be a final and conclusive resolution of the matter. If and when such future scientific tests reveal definitive, concrete, and substantial data that establishes that any discharge of tailings into Lake Superior is polluting that Lake, remedial action should be instituted by the available procedural steps.