Full opinion text
MEMORANDUM AND ORDER MILES W. LORD, District Judge. This action for injunctive relief is before the Court after 139 days of trial, which included testimony from well over 100 witnesses, over 1621 exhibits, and over 18,000 pages of transcript. Of necessity, it will require several weeks before the Court will be able to set forth in writing its detailed findings of fact and conclusions of law. Inasmuch as the case deals with issues concerning public health, the ultimate resolution of the problem should not be delayed by this procedural matter. The Court has carefully considered all of the evidence and hereto sets forth its essential findings of fact and conclusions of law to be refined and supplemented at a later date. Findings of Fact 1) Reserve Mining Company (Reserve) is set up and run for the sole benefit of its owners, Armco Steel Corporation (Armco) and Republic Steel Corporation (Republic), and acts as a mere. instrumentality or agent of its parent corporations. Reserve is run in such a manner as to pass all its profits to the parents. 2) Reserve acting as an instrumentality and agent for Armco and Republic discharges large amounts of minute amphibole fibers into Lake Superior and into the air of Silver Bay daily. 3) The particles when deposited into the water are dispersed throughout Lake Superior and into Wisconsin and Michigan. 4) The currents in the lake, which are largely influenced by the discharge, carry many of the fibers in a southwesterly direction toward Duluth and are found in substantial quantities in the Duluth drinking water. 5) Many of these fibers are morphologically and chemically identical to amosite asbestos and an even larger number are similar to amosite asbestos. 6) Exposure to these fibers can produce asbestosis, mesothelioma, and cancer of the lung, gastrointestinal tract and larynx. 7) Most of the studies dealing with this problem are concerned with the inhalation of fibers; however, the available evidence indicates that the fibers pose a risk when ingested as well as when inhaled. 8) The fibers emitted by the defendant into Lake Superior have the potential for causing great harm to the health of those exposed to them. 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 in Wisconsin. 10) The discharge into the water substantially endangers the health of the people who procure their drinking water from the western arm of Lake Superior including the communities of Beaver Bay, Two Harbors, Cloquet, Duluth, and Superior, Wisconsin. 11) The present and future industrial standard for a safe level of asbestos fibers in the air is based on the experience related to asbestosis and not to cancer. In addition its formulation was influenced more by technological limitations than health considerations. 12) The exposure of a non-worker populace cannot be equated with industrial exposure if for no other reason than the environmental exposure, as contrasted to a working exposure, is for every hour of every day. 13) While there is a dose-response relationship associated with the adverse effects of asbestos exposure and may be therefore a threshold exposure value below which no increase in cancer would be found, this exposure threshold is not now known. Conclusions of Law 1) The Court has jurisdiction over the subject matter of the various claims pursuant to 28 U.S.C. §§ 1345 and 1331. As to those claims based upon state law, the Court exercises its jurisdiction pursuant to the doctrine of pendant jurisdiction. 2) Reserve’s discharge into the water is in violation of the Federal Water Pollution Control Act as amended in 1970. 33 U.S.C. § 1151 et seq. The violations involve both interstate and intrastate waters and are subject to abatement pursuant to 33 U.S.C. § 1160(c)(5) and (g)(1). Specifically Reserve’s discharge is in violation of water quality standards referred to as WPC 15(a)(4), (c)(6) and (c)(2). 3) Reserve’s discharge into the water creates a common law nuisance in both interstate and intrastate waters of Lake Superior. 4) Reserve has no permit that sanctions its violations of the Federal Water Pollution Control Act as amended in 1970. 5) Reserve has no permit that sanctions its creation of a common law nuisance in the waters of Lake Superior. 6) Reserve’s discharge into the air creates a common law nuisance condition in the ambient air in Silver Bay and the surrounding communities and is subject to abatement. Furthermore, the air discharge violates Minnesota Regulations APC 5, 6 and 17. 7) Industrial standards for asbestos exposure do not apply to environmental exposure and are therefore not applicable to the facts in this ease. 8) In that Reserve is a mere instrumentality or agent of its parents who have used Reserve as a shield to protect themselves from the consequences of Reserve’s illegal pollution of Lake Superior, Armco and Republic must bear legal responsibility for Reserve’s actions. Furthermore, since Reserve’s profits are siphoned off by its parents, in order to insure an effective remedy if civil fines or other monetary relief are called for, the independent corporate entity of Reserve must be disregarded. 9) All additional legal questions including the question of civil fines, financial responsibility for water filtration systems in Lake Shore communities, alleged violations of the Refuse Act, 33 U.S.C. § 407, specific Wisconsin criminal and civil statutes as well as the Wisconsin Public trust doctrine, and Reserve’s counterclaims against the State of Minnesota are taken under advisement and will be decided at a later date. The question as to what part of the potential fines and penalties should be awarded to Reserve employees or others who would lose their jobs is likewise held for further argument and consideration. Memorandum It has been clearly established in this case that Reserve’s discharge creates a serious health hazard to the people exposed to it. The exact scope of this potential health hazard is impossible to accurately quantify at this time. Significant increase in diseases associated with asbestos exposure do not develop until 15 to 20 years after the initial exposure to the fibers. The state of the scientific and medical knowledge available in this area is in its early stages and there is insufficient knowledge upon which to base an opinion as to the magnitude of the risks associated with this exposure. The fact that few fibers have been found in the tissue of certain deceased Duluth residents may indicate that the general contamination in the community of Duluth has not yet reached alarming proportions. Unfortunately, the real answer to the problem will not be available until some ten to twenty years from this date when the health experience of those exposed to the fibers emitted from Reserve’s plant is reviewed. At present the Court is faced with a situation where a commercial industry is daily exposing thousands of people to substantial quantities of a known human carcinogen. Emphasis is placed upon the fact that the Court is not dealing with a situation in which a substance causes cancer in experimental animals where the effect on humans is largely speculative. Fibers identical and similar to those emitted from Reserve’s plant have been directly associated with a marked increase in the incidence of cancer in humans. The Court has been constantly reminded that a curtailment in the discharge may result in a severe economic blow to the people of Silver Bay, Babbitt and others who depend on Reserve directly or indirectly for their livelihood. Certainly unemployment in itself can result in an unhealthy situation. At the same time, however, the Court must consider the people downstream from the discharge. Under no circumstances will the Court allow the people of Duluth to be continuously and indefinitely exposed to a known human carcinogen in order that the people in Silver Bay can continue working at their jobs. Naturally the Court would like to find a middle ground that would satisfy both considerations. If an alternate method of disposal is available that is economically feasible, could be speedily implemented and took into consideration the health questions involved, the Court might be disposed to fashion a remedy that would permit the implementation of such a system. However, if there is no alternative method available, the Court has no other choice but to immediately curtail the discharge and stop the contamination of the water supply of those downstream from the plant. With these considerations in mind, the Court on February 5, 1974, took the unusual step of relating to the parties the Court’s view of the evidence to date concerning the public health issue. The Court had heard in one form or another from substantially all of the world’s experts in the area. The Court was led to believe by Reserve that little had been done in the way of devising an alternative method of disposing of the tailings on land and, in fact, that Reserve knew of no feasible way to accomplish such a system. At that time, it was Reserve’s posture in this litigation that the only feasible alternative to the present discharge was the creation of a pipe system that would carry the tailings to the bottom of the lake. If, in fact, the deep pipe system was unacceptable, the Court was led to believe that Reserve had no alternative method for disposing of the tailings. Hence the Court found it essential that Reserve’s attention be focused directly on the problem and a possible on land disposal alternative be developed as quickly as possible. The Court was at one and the same time hearing a motion for a temporary restraining order and a permanent injunction. The reluctance of the Court to make a formal ruling on the temporary restraining order at an early time was done out of caution with the anticipation of hearing from more of the world’s experts. It was after hearing all of this evidence that the Court gave its tentative findings on the health issue with the caveat that further evidence would be taken. The statement was made with a view toward giving Reserve an impetus to start resolving its problems and to give Duluth and the Lake Shore communities time to seek clean water. It did not have the desired effect in either instance. As it turned out, after days of testimony on the underwater disposal alternative proposed by Reserve, it became clear to the Court that this alternative in no way lessened the public health threat and possibly created additional problems relating to public health. The Court’s findings in this regard turned out to be superfluous in that later testimony by representatives of Armco, half owner of Reserve, indicated that Armco had long since disregarded this underwater disposal system on the basis of engineering infeasibility alone, without any regard to its effect on the lake or public health. Upon further inquiry to officers of Armco and Republic, who also serve on the Board of Directors of Reserve, it appeared that several plans had been developed dealing with the possibility of on land disposal. Although these plans had been asked for by plaintiffs by way of interrogatories and by the Court by direct order, they were not produced nor mentioned until the representatives of Armco and Republic were deposed on March 1, 1974. The Court is apprised that defendants’ failure to produce these plans for on land disposal will be the subject matter for motions by the plaintiffs to collect costs involved in the litigation so this matter will be dealt with at that time. The Court has stated on the record and will repeat here that Reserve’s insistence' on advocating the underwater disposal system which had been deemed infeasible by one of its owners and the failure to timely produce the documents dealing with possible on land disposal systems has substantially delayed the outcome of this litigation in a situation where a speedy resolution is essential. The Court refers to this history in the case only to point out that since February 5 defendants were informed that the present method of discharge would stop and that if they chose to keep Reserve in operation they had to come up with an on land disposal alternative that would satisfy the health problems created by the present discharge in the air and water. It was the Court’s fervent wish that the health hazard could be abated without the economic problems that would be imposed upon the people in the North Shore communities if Reserve in fact closed down permanently. The documents of Reserve’s parent companies indicate that they have known for some time that they would have to make modifications in their discharge, Judge Eckman in December of 1970 came to this same conclusion. In Reserve Mining Company v. Minnesota Pollution Control Agency, Sixth Judicial District of Minnesota he stated: “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.” Even when faced with the evidence in this case that their discharge creates a substantial threat to the health of the people exposed to it, defendants are reluctant to curtail their discharge until the latest possible moment, presumably in order to prolong the profitability of the present discharge. It was not until a few days ago that there was any indication to this Court that Reserve had a feasible plan for the disposal of taconite tailings on land. The testimony in the case by Reserve and representations by Reserve’s counsel indicated that they not only had no such plan but that the engineering problems of such a system were insurmountable. The plaintiffs, on the other hand, introduced testimony indicating that on land disposal is feasible. Reserve took issue with this testimony even after the major engineering problems were solved and maintained that it would simply be too expensive to change their method of disposal to on land. The evidence in the case indicates that the daily profit in the operation at Reserve is in the neighborhood of $60,000. 00 per day. Each year that the plant remains in operation there is a 90 per cent return on owners’ equity. In other words, for every dollar Armco and Republic initially invested in Reserve, they get back ninety cents each year the plant remains in operation. This is not to say that the companies could not afford to make modifications. The testimony adduced at trial was to the effect that (with product improvement) Reserve, Republic and Armco could afford at the very least a $180,000,000 to $200,000,000 capital outlay with reasonably associated operating costs without substantially changing their economic situation as to profitability, intra-industry position, interest coverage, bond rating, etc. This figure should come as no shock to the defendant. Their own documents, recently discovered, support this fact. In this area it should be noted that any reduction in the royalty rate paid by Reserve or the interest rate, by such devices as revenue bonds or industrial bonds, would make even larger capital outlays, with accompanying operating expenses, possible. The defendants deny that they have made any overtures towards the Mesabi Trust with respect to a possible adjustment of the royalty rate and that no such overtures are contemplated. Therefore this Court’s finding as to the financial ability of Reserve, Armco and Republic to abate the discharge is made without reference to any reduction in the royalties. This is not an occasion that calls for massive public aid to a dying industry. There is no evidence that either state or federal assistance is needed by the defendant to make this investment. The protestations by Reserve that it cannot do it alone must be put in the same class of assertions as the one that the “deep pipe” plan was the only possible alternative method of tailings disposal. The evidence is clear that Republic and Armco are two of the largest corporations in this country. They are prosperous now and would remain prosperous even after the necessary alterations are made. Defendants have had the means to implement a feasible, economical alternative. It was their choice whether they would make the investment or abandon their employees and the State of Minnesota. It should be noted in this regard that the State of Minnesota is here in the posture of asking the Court for fines and penalties as well as injunctive relief. Reserve on the other hand still has outstanding counterclaims against the state. It would, therefore, be inappropriate and premature for this governmental unit to subsidize the company before these matters are decided by the Court. Today, April 20, 1974, the chief executive officers of both Armco and Republic have testified that they are unwilling to abate the discharge and bring their operation into compliance with applicable Minnesota regulations in an acceptable manner. They proposed a plan for an on land disposal site in the Palisades Creek area adjacent to the Silver Bay plant. Although this particular plan was in existence for several years it was not brought forward until the latest stages of this proceeding. The plan, which has been rejected by the plaintiffs because it is not environmentally sound, is totally unacceptable to the Court because of the conditions imposed with it. In the first place implementation of the proposal fails to effectively deal with the problem caused by the discharge of amphibole fibers into the air. Secondly, the plan contemplates that the discharge into the water will continue for five more years. In light of the very real threat to public health caused by the existing discharge, this time period for abatement is totally unacceptable. Third, it is suggested that the Court order all appropriate state and federal agencies to grant permits that would immunize Reserve’s operations from ever complying with future environmental regulations as they might be promulgated. The Court seriously doubts that it has the power for such an order, and states flatly that if it had the power it would not grant such an order. Reserve in this case has argued that certain state and federal permits granted years ago sanctions their non-compliance with existing regulations and should preclude the Court from abating the discharge of human carcinogens into the air and water. Such a claim is preposterous and the Court will have no part in perpetuating such claims. The proposal is further conditioned on obtaining compensation from the federal and state governments. The Court has previously discussed the lack of necessity for such a subsidy and finds the suggestion absurd. Finally, the proposal was conditioned upon favorable findings by the Court as to the public health issues. The Court finds this condition to be shocking and unbecoming in a court of law. To suggest that this or any other court would make a finding of fact without regard to the weight of the evidence is to ask that judge to violate the oath of his office and to disregard the responsibility that he has not only to the people but also to himself. Defendants have the economic and engineering capability to carry out an on land disposal system that satisfies the health and environmental considerations raised. For reasons unknown to this Court they have chosen not to implement such a plan. In essence they have decided to continue exposing thousands daily to a substantial health risk in order to maintain the current profitability of the present operation and delay the capital outlay (with its concommitant profit) needed to institute modifications. 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. Up until the time of writing this opinion the Court has sought to exhaust every possibility in an effort to find a solution that would alleviate the health threat without a disruption of operations at Silver Bay. Faced with the defendants’ intransigence, even in the light of the public health problem, the Court must order an immediate curtailment of the discharge. Therefore, it is ordered. 1) That the discharge from the Reserve Mining Company into Lake Superior be enjoined as of 12:01 A.M., April 21, 1974. 2) That the discharge of amphibole fibers from the Reserve Mining Company into the air be enjoined as of 12:01 A.M., April 21, 1974 until such time as defendants prove to the Court that they are in compliance with all applicable Minnesota Regulations including but not limited to APC 17. SUPPLEMENTAL MEMORANDUM On April 20, 1974, the Court issued an injunction halting the discharge into the water and the discharge of amphibole particles into the air at defendants’ operations at the Reserve Mining plant. Attached to the order were the Court’s essential Findings of Fact, Conclusions of Law and a short Memorandum setting forth the reasons for issuing the injunction. The Court indicated at that time that a more detailed Memorandum would be forthcoming but b'ecause of the substantial danger to public health that is created by the discharge the injunction could not wait. This Memorandum is to supplement the Findings of Fact, Conclusions of Law and Memorandum that the Court issued on April 20, and, along with those documents, comprises the Court’s Findings of Fact and Conclusions of Law in this matter. Plaintiffs This action was originally brought by the United States of America at the request of the Administrator of the Environmental Protection Agency and with the consent of the Governor of Minnesota. The States of Wisconsin and Michigan subsequently moved to intervene as plaintiffs as did the following: 1) The Minnesota Environmental Law Institute, Inc., a non-profit corporation whose members are residents of Minnesota and use Lake Superior as an aesthetic, recreational and conservational resource. 2) Northern Environmental Council, a non-profit confederation of forty-four environmental organizations in Minnesota, Wisconsin, Michigan, North Dakota, South Dakota and Indiana, members of which own property adjoining Lake Superior, receive drinking water from Lake Superior and use Lake Superior as an aesthetic, recreational and conservational resource. 3) Save Lake Superior Association, a non-profit corporation founded for the protection of the Lake from pollution, whose members include owners of property adjoining the lake, persons who receive their drinking water from the lake and use the lake as an aesthetic, recreational and conservational resource. 4) The Michigan Student Environmental Confederation, Inc., a confederation of 130 environmental groups representing citizens throughout the State of Michigan. All of the above motions for intervention were granted in the Court’s Order of June 15, 1972. Pursuant to Reserve’s motion and the Court’s Order of July 31, 1973, the State of Minnesota was made a party plaintiff. Minnesota subsequently filed a complaint in its capacities as parens patriae to prevent harm to its interests; as trustee over the waters of Lake Superior within its boundaries and the lake bed underlying those waters; as protector of its citizens from public nuisances degrading the quality of its water; and as the sovereign entity responsible by law for implementation and enforcement of the laws designed to preserve and protect the waters of the State. The Minnesota Pollution Control Agency was also a named plaintiff along with the State of Minnesota. The Environmental Defense Fund’s (“E.D.F.”) motion to intervene was granted in the Court’s oral order of July 31, 1973. The E.D.F. is a non-profit public benefit corporation, incorporated in New York. It has a nationwide membership of 40,000 several of whom live in areas of Minnesota, Wisconsin and Michigan that are affected by Reserve’s discharge. Other members regularly visit the “affected area” for recreational and aesthetic purposes. When it became apparent that the accumulation of carcinogenic amphibole fibers in the water supplies of Duluth, Minnesota and Superior, Wisconsin would necessitate expensive filtration systems to protect the health of its citizens, both cities moved to intervene as party plaintiffs in this case. Their intervention was not opposed, although defendants contest the claims asserted in intervention. The Court granted their motion to file claims as intervening plaintiffs on April 19,1974. Defendants Reserve Mining Company is a Minnesota corporation that was set up and is operated for the sole benefit of its parent corporations, Armco Steel Corporation, an Ohio corporation, and Republic Steel Corporation, a New Jersey corporation. Reserve was the original named defendant. Pursuant to motions by the plaintiffs on January 4, 1974, the Court ordered that Republic and Armco be joined as party defendants. In accordance with 28 U.S.C. § 1292(b), the Court certified the question for review by the Court of Appeals for the Eighth Circuit as to whether joinder at that state in the proceedings was proper. On January 21, 1974, the Court of Appeals ruled that it was an abuse of discretion to join Armco and Republic at that time but that the matter could be resubmitted to this Court for its decision at a later date after the resolution of the public health and liability aspects of the litigation. Pursuant to the Order from the Court of Appeals, the motion for joinder was refiled and granted by this Court on March 29, 1974. On behalf of the defendants several groups have intervened in this law suit. Each alleges a general economic interest in Reserve’s continued operation. The Village of Silver Bay is a Minnesota municipal corporation which was built and organized in conjunction with defendants’ plant. The Town of Beaver Bay is a municipal corporation duly organized and existing as a Township in Lake County, Minnesota. Defendant Reserve presently supplies employment directly or indirectly to many of its citizens. The Village of Beaver Bay is a municipal corporation located adjacent to the site of Reserve’s taconite plant. Silver Bay Chamber of Commerce is a non-profit Minnesota corporation created to promote the commercial, industrial, recreational, civic and general interests of the Village of Silver Bay and its trade area. The Village of Babbitt is a municipal corporation which alleges total economic dependence on the operations of Reserve. The Range League Municipalities and Civic Associations is an unincorporated association of cities, villages, schools and towns formed to promote the general and community welfare and employment opportunities of the Northeastern Minnesota regional area. The Northeastern Minnesota Development Association is a non-profit Minnesota corporation formed for scientific and educational purposes to promote the general and community welfare and employment opportunities in the Northeastern Minnesota area. The Duluth Area Chamber of Commerce is a Minnesota non-profit corporation organized to promote the advancement of the industrial, civic and municipal interests of the Duluth, Minnesota area. St. Louis County is a municipal corporation that borders on Lake County. Lake County is a duly organized county government which contains the Reserve operation at Silver Bay within its limits. Lax Lake Property Owners Association is a non-profit Minnesota corporation created to foster, develop and promote recreational, civic and community welfare. Claims The United States, in its second amended complaint asserts five independent legal bases for its claim for injunctive relief. First it is claimed that Reserve’s discharge is subject to abatement pursuant to the Federal Water Pollution Control Act (“FWPCA”) as amended in 1970, 33 U.S.C. § 1151 et seq. Section 10(c)(5) of the Act provides, in part: (5) The discharge of matter into such interstate waters or portions thereof, which reduces the quality of such waters below the water quality standards established under this subsection (whether the matter causing or contributing to such reduction is discharged directly into such waters or reaches such waters after discharge into tributaries of such waters), is subject to abatement in accordance with the provisions of paragraph (1) or (2) subsection g of this section .... (33 U.S.C. § 1160(c)(5).) Subsection 10(g)(2) provides that the Secretary (now Administrator): in the case of pollution of waters which is endangering the health and welfare of persons only in the State in which the discharge or discharges (causing or contributing to such pollution) originate, may, with the written consent of the Governor of such State, request the Attorney General to bring a suit on behalf of the United States to secure abatement of the pollution. (33 U.S.C. § 1160(g) (2).) It is claimed that Reserve’s water discharge violates interstate water quality standards for the Minnesota waters of Lake Superior known as Minnesota Regulation WPC 15, which were approved by the Secretary of the Interior on November 26, 1969. Specifically, the U.S. claims that Reserve is in violation of WPC 15(a)(4), (c)(2) and (c)(6). Basically WPC 15(a)(4) is a non-degradation regulation requiring that waters of a quality better than the established standards be maintained at high quality. WPC 15(c)(2) prohibits industrial discharges which cause nuisance conditions. WPC 15(c)(6) requires that secondary treatment or its equivalent be applied to all non-biodegradable industrial wastes. Secondary treatment facilities are further defined as works which will produce an effluent having a total suspended solids concentration of no more than 30 milligrams per liter, turbidity of 25 units, and five-day biochemical oxygen demand of 25 milligrams per liter. In Count II the United States alleges that Reserve’s discharge into Lake Superior constitutes interstate pollution and endangers the health and welfare of persons in the states of Michigan and Wisconsin and is subject to abatement pursuant to the FWPCA, 33 U.S.C. § 1160(c)(5) and 33 U.S.C. § 1160(g)(1). The latter statute provides that the Secretary (now the Administrator): In the case of pollution of waters which is endangering the health or welfare of persons in a State other than that in which the discharge or discharges (causing or contributing to such pollution) originate, may request the Attorney General to bring a suit on behalf of the United States to secure abatement of pollution. The identical water quality standards are invoked in this Count. In Count III the United States alleges that Reserve’s discharge is in violation of 33 U.S.C. § 407 (“Refuse Act”) which provides: It shall not be lawful to throw, discharge, or deposit, or cause, suffer or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States . . . and provided further, that the Secretary of the Army whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material above-mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him provided application is made to him prior to depositing such material. In Count IV the United States alleges that Reserve’s discharge into the water constitutes a nuisance that is subject to abatement pursuant to the Federal Common Law as recognized in Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972). This count alleges that Reserve’s discharge into Lake Superior contains substantial quantities of amphibole fibers, that many of these fibers which are in the eummingtonite-amosite-grunerite series are identical or similar to amosite asbestos fibers, and that they constitute a public health hazard to the persons of Duluth, Silver Bay, Beaver Bay, Two Harbors, Superior, Wisconsin and other communities which are dependent upon Lake Superior for drinking water. Further allegations in the complaint include the claim that the discharge results in the stimulation of the growth of algae and bacteria, creates substantial increase in turbidity in the lake, impairs the ecological balance of the lake, accelerates the eutrophication of the lake, causes what is known as the “green water” phenomenon and substantially detracts from the natural scenic beauty and aesthetic enjoyment and use of Lake Superior. It was further alleged that the discharge decreases the quality of the water and destroys aquatic biota in the lake. Due to the serious nature of the allegations going to the issue of public health the Court ordered that these matters be tried first, pursuant to Rule 42(b) Fed.R.Civ.Pro. leaving the issues of potential harm to the lake environment to be tried at a later time. In Count V the United States claims that Reserve’s discharge into the air creates a common law nuisance subject to abatement pursuant to the Federal common law. - The factual allegations which form the basis for this count include the claims that Reserve discharges into the air substantial quantities of amphibole fibers in the cummingtonite-amositegrunerite series which are similar or identical to asbestos, the inhalation and ingestion of which is a substantial hazard to human health. It is claimed that the discharge creates a public nuisance and significantly endangers the health of all those who breathe the contaminated air. The United States originally prayed for an injunction halting the discharge into both the air and the water within such time and upon such schedule as the Court deemed to be reasonable and proper. After months of testimony on the public health issue the United States joined the other plaintiffs in ásking for an immediate curtailment of the discharge. They further request “such other relief as the Court may deem just and proper”, as well as costs and disbursements. The State of Michigan brings its action as an intervening plaintiff to protect Michigan state waters, including Lake Superior, from pollution, impairment and destruction under Act 127 of Michigan Public Acts of 1970 and under Mich.Const. Art. 4, § 52. As for the legal theories advanced by the State of Michigan, they join in the claims of the United States in Counts I through IV. The State of Wisconsin joins in the United States’ claim that the discharge into the waters of Lake Superior constitutes a common law nuisance in Wisconsin that is subject to abatement pursuant to the federal common law. In addition it is claimed that Reserve’s discharge creates a public nuisance by openly, repeatedly, persistently and continuously violating Wisconsin criminal statutes. In particular it is alleged that Reserve’s discharge violates Section 29.-29 of Wisconsin Criminal Statutes. Wisconsin alleges further that Reserve’s discharge creates a condition that unreasonably interferes with the use and enjoyment of Lake Superior by the people of Wisconsin in violation of the state’s public trust doctrine. Muench v. Public Service Commission, 261 Wis. 492, 53 N.W.2d 514 (1952); Just v. Marinette County, 56 Wis.2d 7, 201 N.W.2d 761 (1972). Finally, Wisconsin alleges that the existence of a deposit by Reserve of material on the bed of Lake Superior within Wisconsin boundary waters is in violation of Wis.Stat. § 30.15(4), and is a nuisance per se. The State of Minnesota and the Minnesota Pollution Control Agency (M.P. C.A.) in their joint complaint have alleged that .the discharge into the air and water creates a common law nuisance. Minnesota joins the United States in the claim that the discharge into the water violates WPC 15. In addition to the specific regulations cited in the United States complaint the State of Minnesota includes WPC 15(c)(6)(c) which deals with unspecified toxic substances, WPC 15(d)(1) concerning discharges that make certain waters unfit to drink even after chemical treatment, and WPC 26 which is a general effluent standard for Lake Superior that incorporates the standards in WPC 15. It is alleged that Reserve’s discharge into the air and water is subject to abatement pursuant to the Minnesota Environmental Rights Act, Minn. Stat. § 116B.02(5). Further it is claimed that Reserve has no permit for its discharge into the water from the pilot plant, main plant, and mine pits and is in violation of Minn. Stat. § 115.07. As for the discharge into the air it is claimed that this is in violation of Minnesota Regulations APC 17 (emission standard for asbestos), APC 5 and 6 (particulate emission standards), APC 1 (primary and secondary air standards), APC 3(a)(2) and Minn.Stat. § 116.081(1) (operation without a permit). Minnesota seeks an immediate abatement of the discharge and civil fines pursuant to Minn. Stat. § 115.-071(3). Minnesota also seeks a monetary award from defendants for the withholding of certain documents concerning on land disposal systems in violation of the Duty of Candor set out in Minn.Reg. MPCA 1 and 11 and Minn. Stat. § 115.071(2) (b). The various environmental groups have intervened as plaintiffs on each of the first four counts in the complaint of the United States. E.D.F. has the additional claim that Reserve’s discharge into the air creates a common law nuisance. E.D.F. also filed cross claims against the United States and the State of Minnesota. These cross claims have been severed for separate trial. The Cities of Duluth, Minnesota and Superior, Wisconsin have intervened as plaintiffs claiming that Reserve’s discharge into the water creates a nuisance endangering the health of their citizens and necessitating the installation of expensive filtration systems. They seek an injunction halting the discharge and compensation from Reserve for the installation of the filtration system. They also have a cross claim against the United States based on the fact that the Chief of Engineers of the United States Army Corps of Engineers has found their communities to be confronted with a source of contaminated drinking water causing or likely to cause a substantial threat to the public health and welfare of the inhabitants of the locality. Therefore it is claimed pursuant to Public Law 93-251 (amending 33 U.S.C. § 70In) that the Corps of Engineers must provide these communities with safe drinking water. Defendant-intervenors have brought similar claims against the United States seeking the Corps of Engineers participation in providing clean water. They make no cross claims against Reserve. Defendant Reserve Mining Company alleges two counterclaims in its answer to the complaint of the State of Minnesota. The first counterclaim is for damages and is based on the allegation that since Reserve has valid permits and licenses for its operation any restriction, limitation or termination of such rights would constitute the taking of defendants’ property without just compensation in violation of the Fifth Amendment of the United States Constitution and Article 1, Section 13 of the Constitution of the State of Minnesota. Reserve’s second counterclaim, again based on the alleged validity of its permits, is for money damages for impairment of the contractual rights of Reserve Mining Company contrary to the provisions of Art. 1, Sec. 10, Clause 1, of the Constitution of the United States and Art. 1, Sec. 11, of the Constitution of the State of Minnesota. The question of Reserve’s counterclaims is taken under advisement and will be dealt with at a later time. Armco Steel and Republic Steel were joined as defendants on March 29, 1974. Because of the prior action of the Court of Appeals the Court takes this opportunity to set out in detail its findings on the questions of the joinder and on the accountability of the parents for the actions of the subsidiary. It is the finding of this Court that the independent corporate identity of Reserve Mining Company must be and is disregarded since this Court cannot allow the interposition of corporate entity to frustrate the implementation of a judgment that is required by justice. General Underwriters v. Kline, 233 Minn. 345, 46 N.W.2d 794 (1951), citing In Re Trust Under Will of Clarke, 204 Minn. 574, 284 N.W. 876 (1939). The Court finds that this subsidiary (Reserve) is so dominated by its parents (Armco Steel Corp. and Republic Steel Corp.) that it is a mere agency or instrumentality of the parents. National Bond Finance Co. v. General Motors Corp., 341 F.2d 1022 (8th Cir. 1965). The Court further finds that this subsidiary is being used as a shield to protect the parents from the consequences of an illegal act. United States v. Del Campo Baking Mfg. Co., 345 F.Supp. 1371 (D.Del. 1972). Finally the Court finds that complete relief cannot be accorded plaintiffs if Reserve is considered a separate entity. Fed.R.Civ.P. 19(a) (1). With respect to the finding that Reserve is a mere agent of Armco and Republic, the Court is aware of the wide divergence in the case law as to what factors have been found to justify disregarding the corporate entity. The Court rules in this case that the following facts are true and when taken together lead to the inescapable conclusion that the parents so control the subsidiary that the subsidiary is not an independent decision making entity. 1. Armco and Republic each own 50% of the outstanding stock of Reserve. 2. The policy making body of Reserve, its Board of Directors, is made up of eleven individuals; five from Armco, five from Republic, and one from Reserve. The Reserve Board in reality makes no decisions. Armco and Republic jointly agree on policy decisions which are then “rubber stamped” by the Reserve Board. 3. Reserve was initiated by Armco and Republic with money supplied by or guaranteed by Armco and Republic. 4. Reserve’s total production of pellets goes to Armco and Republic and to no one else. 5. All debts of Reserve are guaranteed by Armco and Republic and therefore the parents have an equitable interest in all Reserve’s assets. 6. All crucial management decisions such as rate of production and major capital expenditures are made by Armco and Republic. 7. Armco and Republic do not “buy” Reserve’s product at market price. Rather they reimburse Reserve for all its costs including depreciation, taxes, laboratory and experimental expenses, and all other expenses in proportion to their ownership. 8. All “profits” and tax losses flow through to the parents. The dominance of Reserve by its parents was pointedly brought out at trial when Reserve’s witness Mr. Kenneth Haley testified that the decision as to how much money would be spent for pollution control equipment if the Court were to order it would be made by the Boards of Directors of Armco, Republic and Reserve, not Reserve alone. A second similar example was in the testimony of Reserve witness Fr. William T. Hogan, S. J., who said that the decision as to whether or not the parents would maintain the Reserve operation or close it and purchase taconite pellets on the open market would be up to Armco and Republic, not Reserve. As to the question of whether or not the corporate entity of Reserve was used to shield the parents from the consequences of an illegal act there can be no doubt. The evidence adduced at trial proved that the discharge into the water and air was in violation of ten federal or state statutes and regulations. The evidence also proved that the discharges create a common law nuisance in the inter- and intrastate water and air. The evidence further proved that the parents make a large profit by getting their blast furnance feed at cost from Reserve instead of at the market price. Therefore, if the Reserve corporate entity were respected, Armco and Republic would be free to take the benefits of these violations without being accountable for any fines, penalties, or liabilities that attach to such conduct. The fact that Armco and Republic have utilized Reserve as a shield also goes to the question of whether Reserve, due to its relationship with its parent companies, would be able to meet any and all obligations imposed upon it by the Court. The evidence clearly indicates that Reserve alone could not. They make no “profit”. They merely “break even” each year. In fact, the profitability of Reserve cannot even be measured without looking at the books and records of the parents. Therefore they have no fund from which the penalties, claimed by plaintiffs to be somewhere in the neighborhood of one hundred million dollars, could be satisfied. Reserve, Armco and Republic have all urged upon the Court the view that Reserve’s assets in Minnesota are a sufficient fund from which any fines or penalties could be satisfied, if assessed. This strikes the Court as a curious position. It in effect tells the Court that it may not levy fines and penalties without shutting down the plant. Absent funds from Armco and Republic how else could the fines be paid but to sell off the capital equipment? It is quite clear to this Court that Reserve is a mere instrumentality or agent of Armco and Republic which is being used to shield the parent companies from the consequences of the pollution of Lake Superior and the ambient air. It is in the interest of justice, therefore, to disregard the separate corporate entity of Reserve because it is a distinction that exists only on paper, not in reality, and to do so would insure full and complete relief to the plaintiffs and the citizens of the North Shore. Armco and Republic have claimed a violation of due process by their late joinder. This argument cannot stand since the evidence clearly establishes that Reserve is the agent of Armco and Republic. Reserve is the personification of Armco and Republic in the State of Minnesota. Because of this, service upon Reserve is service on Armco and Republic. Notice to Reserve is notice to Armco and Republic. With these facts there can be no due process violation. In addition, the privity between Republic, Armco and Reserve is sufficient to give res judicata effect to the decision of this Court against Armco and Republic. Therefore they are not prejudiced by joinder. Sunshine Coal and Coke Company v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263 (1939). Moreover, it was clear from the testimony of the counsel from Republic Steel and others that the parents were following the course of the litigation to the point that they read copies of the daily transcripts that were sent to Republic and Armco by Reserve attorneys. It was also brought out in cross examination of high Armco and Republic officials that it has not been unusual in the past for the legal departments of the parents to assist the subsidiary in their litigation. It was also shown quite clearly that the corporate parents were kept well informed of this case and were briefed frequently during the trial on what was happening in Court. This Court has no doubt that Armco and Republic were fully apprised of the situation and assisted Reserve in its presentation of the case. INTRODUCTION In an attempt to deal in an organized fashion with the numerous and complex legal and factual problems raised in this case, the Court will first address the issues raised concerning the chemical and physical properties of the ore mined by Reserve. The Court will trace the material from the mine at Babbitt, Minnesota, through Reserve’s beneficiation operation, to its discharge into the ambient air of Silver Bay and the water of Lake Superior. The problem of the transport of the material once discharged will be discussed. Secondly the Court will deal with the substantial medical and scientific testimony that was produced to determine the health effect of exposure to the Reserve discharge. The Court will then turn to a discussion of the applicable law which in turn requires the Court to balance the equities involved. To do this the Court will have to analyze in great detail the economic ability of the defendants to devise a feasible alternative to the present mode of discharge and the weight that that ability will be given. I. A. Operations Reserve Mining Company is a Minnesota corporation. All its officers, save 10 out of 11 members of the Board of Directors, and 3,200 employees are Minnesota residents. Reserve produces merchantable iron ore in the form of pellets from taconite, a' hard, gray rock in which are embedded fine particles of magnetite, a black magnetic oxide of iron. The taconite is mined at Babbitt, Minnesota where Reserve’s mineral body is located. After the scrub tree growth and brush are removed, the glacial till and. overburden is stripped away to expose the taconite. Jet piercers sink 40-foot deep holes in the hard rock. The holes are loaded with explosives and “shot” to break the taconite into pieces. Shovels load the broken taconite into trucks which haul the material — about 90,000 tons per day to two crushing plants. Here the processing of taconite begins. A series of crushers reduce the taconite to chunks smaller than four inches. Then 150-car trains carry the materials on Reserve’s 47 mile long intra-plant railroad to Silver Bay for further processing. At Silver Bay the railcars are unloaded and the taconite is conveyed to the fine crushing plant where two stages of crushers reduce the taconite to minus % inch pieces. The taconite is then conveyed to the concentrator plant where water enters the process. Tailings result when iron ore particles rich in iron oxide are separated from those that are very lean or barren. The lean or barren portions are the tailings. The separation or mineral beneficiation is performed in three stages of grinding and five steps of separation. After the taconite is coarsely ground in rod mills, the first separation — magnetic separation — is performed. Separation is made at a very coarse size, with some particles being as large as % of an inch. Next, the iron-rich product is fed into ball mills which grind the material to an intermediate size. Following the ball mill grinding, the second step of magnetic separation is performed. At this intermediate size, some tailings particles are as large as %2 of an inch. Following this magnetic separation, the iron-rich portion of the materials is separated according to its particle size. The particles too large for further processing are returned to the ball mills. The proper size material is fed into the third and fourth stages of separation. The third step is a hydraulic separation step in which the heavier, iron-rich particles sink in relatively still pools of water, and the low-iron content particles are caused to overflow as tailings. From this hydroseparation step, the iron-rich portion of the material is fed into finisher magnetic separators, the fourth separation step. The iron-rich material is then pumped to another step of separation by particle size. The large particles are fed into the third stage of grinding, a ball mill operation, where they are ground to the proper size and returned to the hydroseparation step described above. The proper size particles are fed into the final or fifth stage, another hydroseparation step. The heavier, iron-rich particles settle to the bottom of a rather still pool of water and are pumped out as a final concentrate. The lighter, low iron-bearing particles are caused to flow over the top of the receptacle and are discharged as tailings. All these grinding-separation steps are performed with solid material suspended in water. The tailings are all joined together from each step of separation and then are transported down a system of troughs, or “launders,” as a slurry of approximately 2.7 % solids. Reserve has 22 concentrating sections feeding tailings by gravity through two main launders to the shore of Lake Superior. The tailings originally discharged at the shore from each of these two launders have formed a beach or delta. The very coarse fraction settles first to form this beach. The finer fraction of tailings flows across this beach and enters the lake as a slurry of approximately 1.5% solids. This tailings slurry then forms a heavy density current which generally flows toward the bottom carrying the suspended particles with it. The concentrate is filtered to 10% to 11% moisture, and conveyed-to the pelletizing plant. Here the concentrate is rolled into green pellets of about %" diameter with the use of bentonite as a cohesive agent. They are hardened by heating to approximately 2,350° F. Pellets are then placed into pellet storage or loaded into ore boats. The ore body at Babbitt is located on the Laurentian Divide with the land area to the north of the mine lying in the Hudson Bay drainage area and the land to the south of the mine lying in the Lake Superior drainage area. At the Silver Bay plant, 2,062,500 tons of water are required for each day’s production of pellets. Water is used, not consumed, in the process and then is returned to Lake Superior in the tailings slurry. B. Mineralogy Dr. Gunderson in his work on the metamorphosed Biwabik Iron Formation of the Eastern Mesabi District, in which Reserve’s Peter Mitchell Pit is located, reported that cummingtonite-grunerite (MgiFe)SÍ8022(OH)2, is the most abundant silicate which occurs in almost all of the submembers of the metamorphosed iron formation. The most abundant variety of cummingtonite-grunerite, although not as abundant in the eastern end of the range as it is in the western, is the typically fine to medium grained, prismatic to acicular grunerite. Next to magnetite and quartz, cummingtonite-grunerite is generally the most abundant mineral throughout the iron formation on the East Mesabi, except, of course, where other metamorphic silicates have already developed. In many parts of the upper slaty and cherty, where Reserve mines, cummingtonite-grunerite commonly exceeds 60% of the rock. These general findings have been confirmed by witnesses for both sides during the trial. While the percentages may be contested, and will be dealt with later, the following witnesses identified amphiboles in the cummingtonite-grunerite series: Drs. Kramer and Stout in pit samples; Dr. Stout in mill samples; Dr. Krause in the tailings and stack dust from the pelletizer; Mr. Johnson in pelletizer dust and tailings; and Dr. Cook and Dr. Langer in the tailings. Reserve’s Exhibit 92B, used not only to indicate the presence of minerals, but also their relative abundance, indicates at least 31% amphibole in the initial concentrating and pelletizing step — rod mill feed. Using this figure, this equals 1227.60 L.T.P.H. (long tons per hour) of amphiboles. It was conceded by defendant Reserve that approximately 26% of the deposit in the Peter Mitchell Pit is amphibole mineral in the cummingtonite-grunerite series. One of the issues in this case is whether or not the amphibole minerals mined in the Peter Mitchell Pit are “identical to” or “similar to” amosite asbestos. It must be noted that asbestos is a commercial term that has no independent mineralogical or geological significance. Amosite too, is a trade name and a non-mineralogical term, for certain fibrous minerals in the cummingtonite-grunerite range that have commercial importance. The name was derived from a certain mine in South Africa. Amosite does not indicate a specific mineral composition; it is a range of mineral compositions with a range in bulk chemistry. (U.S. Exhibit 169) Reserve knew as early as 1960 that the Peter Mitchell Pit contained “asbestos.” Reserve witness Dr. Gunderson testified that he had analyzed drill core samples sent to him by Reserve and had reported to Reserve on July 1, 1960 that the analysis showed the presence of asbestos. This particular material was the commercial type asbestos. Generally, it can be said that cummingtonite-grunerite is a series of silicate amphiboles that vary in their iron to iron plus magnesium ratio, the higher iron percentage being termed grunerite although the whole range is generally called cummingtonite. Within this range lies a sub-range that in some areas is identical to the commercial material called amosite. Therefore, while not all hand-picked samples of cummingtonite-grunerite will be identical to amosite in chemical composition, it has been proven that a part of the material has the precise iron to iron plus magnesium ratios of amosite. When one considers the fact that Reserve’s tailings will be representative of the whole cummingtonite-grunerite series, a large portion of the tailings will have a chemistry identical to or similar to amosite. Dr. Cornelius S. Hurlbut, a Reserve witness, admitted that cummingtonitegrunerite from Reserve Mining Company and amosite from South Africa were chemically identical while being physically different. He also stated that the unit cell of cummingtonite-grunerite from Reserve and the unit cell of amosite would be substantially identical. Dr. Zussman, another Reserve witness, agreed with the unit cells being identical with the only distinction being that the single unit cell of cummingtonite would be smaller. There were two differences pointed out by Dr. Hurlbut between cummingtonite-grunerite and amosite: refractive index and angle of extinction. While this may be true when the two are in groups of crystals, a single crystal of cummingtonite-grunerite would have the same refractive index and angle of extinction as a single crystal of amosite. In addition, it has no probative value either way since no evidence has been introduced that - says either one of these characteristics has any particular biological or physiological significance. Cummingtonite-grunerite and amosite have overlapping chemistries that are identical in some cases. The morphology of the two minerals is so similar that numerous witnesses could not distinguish them one from the other. Electron diffraction patterns from the two are similar with the phenomena of “streaking” being found in both. X-ray diffraction and infrared spectroscopy give identical results in both cases. Scientists for both sides have found that cummingtonite-grunerite and amosite have in most instances similar morphology, crystallography and chemistry and are, therefore, indistinguishable. The Court has found that cummingtonite-grunerite and amosite are similar and in some cases identical. The next question is whether some part of tailings from Reserve are similar or identical to amosite fibers (the known human carcinogen). Several witnesses for both sides could not distinguish between amosite fibers and fibers discharged by Reserve . Mining based on morphology alone. This Court after many months of expert testimony and after personally studying a great number of transmission electron microscope (T.E.M.) photographs feels itself knowledgeable on the subject of distinction based on morphology alone; and no one, to the Court’s satisfaction, could point to any distinguishing characteristics. As to crystallography, U.S. Exhibit 171 shows an infrared presentation comparing cummingtonite-grunerite from Reserve to amosite from Johns Manville. The patterns are identical in all significant respects. Infrared spectroscopy is one indicator of crystal structure. When one compares U.S. Exhibit 28 which is an x-ray pattern for amosite and U.S. Exhibit 6 which are patterns of water with taconite tailings added, one again sees patterns that are identical in all significant respects. Reserve’s own witnesses, David Pytynia for example, testified that on the basis of the electron diff