Opposition Brief — Ohio v. Wyandotte Chemicals Corp.

i

INDEX

STATEMENT AND BRIEF

Grounds On Which Jurisdiction Of

This Court Is Invoked

Purpose of Ohio’s Motion

Question Presented

Statement of the Case

ARGUMENT

I No Affirmative Relief Is In Fact Involved

II Filing Of The Complaint Would Conflict With

Declared National And International Policy,

And Is Contrary To Detailed Procedures Which

Have Been Established For The Resolution Of

The Problems Of Water Pollution

A. Filing of the complaint would subvert the

mandatory conference required by the

Federal Water Pollution Control Act and

produce a flood of litigation in this Count

. Filing of the complaint would discourage

state action as mandated by the Federal

Water Pollution Control Act

. Filing of the complaint would contravene

the procedures of the Boundary Waters

Treaty of 1909

III The Factual And Legal Situation Differs From

A. New Jersey v. New York City

The Cases Relied On By Plaintiff. 200000...

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10

:

CRIN SEAL DES EEN LOREM TP ETON M8

B. Georgia v. Tennessee Copver Company =

(1) No allegation is made of any effort to

obtain relief by the State of Michigan

(2) Ohio has numerous alternatives

(3) No risk of great damage exists

APPENDIX I—Article of Cleveland Press,

SUIT SEs Foie etiinsesSubsntenctibicennsdageniicndstendiatondiatansibsidduitiiesmaitiiiblian

APPENDIX Il—Affidavit of Robert E. Dann.

APPENDIX III]—Consent Order, Kelley v. Wyan-

dotte Chemicals Corporation, Cireuit Court of

Ingham County, Michigan, April 23, 1970.00.

APPENDIX IV—Portion of Transcript of Lake Erie

Enforcement Conference, not yet printed...

CITATION OF AUTHORITIES

Case Authority:

Page

Far East Conference v. U.S., 342 U.S. 570 (1952). ~ 10

Georgia v. Tennessee Copper Company, 206 U.S. 230

(1907) 2, 15, 16, 17

Missouri v. Illinois, 180 US. 208 (1901) = 15

New Jersey v. New York City, 283 U.S. 473 (1931) 2,15

New York v. New Jersey, 256 U.S. 296 (1921) 8,10

North Dakota v. Minnesota, 263 U.S. 265 (1923) 15

Texas & Pacific Railway Company v. Abilene Cotton

Oil Co., 204 U.S. 426 (1907) j 10

U.S. v. Western Pacific R. Company, 352 8. 59 (1956) 10

White Lake Improvement Association v. City of White-

hall, 22 Mich. App. 262 (1970) i 13, 16

Treaty:

Treaty Between the United States and Great Britain

Relating to Boundary Waters Between the United

States and Canada, Dated January 11, 1909, and

Proclaimed May 13, 1910, 36 Stat. 2448.2, 13, 14, 16

Statutes:

a of the United States, Article III, Section

2, Clause 2 cailnatvulnicahdadle

U nited States Code, Title oR, ‘Section 1251. ae om

Federal Water Pollution Control Act, as amended,

United States Code, Title 33,

Section 466 et seq. , 6-8, 10-13, 16

Environmental Quality Improv ement Act of 1970, Pub.

L. 91-224, 84 Stat. 114 iiadetie beeeibatanineaaccieiigamsaaeientate?! ae

> bo

IN THE

Supreme Court of the United States

OCTOBER TERM, 1969

STATE OF OHIO, EX REL., PAUL W. BROWN, Attorney

General of Ohio, State House Annex, Columbus, Ohio 43215

Plaintiff,

—vs.—

WYANDOTTE CHEMICALS CORPORATION, A corporation

existing under the laws of Michigan, located at 1609 Biddle

Avenue, Wyandotte, Michigan,

DOW CHEMICAL COMPANY OF CANADA, LIMITED, A cor-

poration existing under the laws of the Dominion of Canada,

located at Sarnia, Ontario,

and

THE DOW CHEMICAL COMPANY, A corporation existing

under the laws of Delaware, located at Midland, Michigan,

Defendants.

ccsssnsennal

STATEMENT AND BRIEF OF WYANDOTTE

CHEMICALS CORPORATION, ONE OF THE

RESPONDENTS, IN OPPOSITION TO THE

MOTION FOR LEAVE TO FILE COMPLAINT,

WITH APPENDICES

STATEMENT AND BRIEF

This Statement and Brief is filed on behalf of the De-

fendant, Wyandotte Chemicals Corporation (hereinafter

called ‘* Wyandotte’’) in opposition to the Plaintiff’s Motion

for Leave to File Complaint. Plaintiff is hereinafter called

“Ohio’’, and its Attorney General ‘‘Petitioner’’.

On Re:

ER Te I a HE

DE NE OTE POLLO OE OE,

2

GROUNDS ON WHICH JURISDICTION

OF THIS COURT IS INVOKED

Ohio invokes this Court’s jurisdiction under Article III,

Section 2, Clause 2, of the Constitution of the United

States; Title 28 U.S.C., §1251; Georgia v. Tennessee Copper

Company, 206 U.S. 230 (1907); New Jersey v. New York

City, 283 U.S. 473 (1931); and on a purported urgency for

action by this Court. Reference is made by Ohio to Art. IV

of the treaty between the United States and Great Britain

dated January 11, 1909 and proclaimed May 13, 1910.

Art. III, Sec. 2 of the Constitution of the United States,

and 28 U.S.C., §1251 would, absent other factors, permit

this Court to assume jurisdiction herein.

PURPOSE OF OHIO’S MOTION

The Complaint prays that alleged conduct of Wyandotte

be declared a public nuisance and seeks the abatement

thereof together with incidental relief.

Contemporaneous statements by the Petitioner indicate

that this is an appropriate categorization of the relief

sought and that the purpose exists to establish a precedent

for further intimate involvement of this Court in affirma-

tively dealing with interstate pollution cases.”

The brief amicus curiae of the Attorney General of the

State of Michigan suggests that this Court’s action here

would be of a ‘‘precedent setting nature’’, and that this

Court, based on a ‘‘frank admission . . . (of) the neglect

1. Petitioner was quoted on May 15, 1970 in an article in The Cleve

land Press, reproduced in its entirety as Appendix I, as follows:

“Brown explained tht if the Supreme Court issued an

injunction to stop polluting the streams, ‘you know the

company against whom the injunction was issued will stop,

period. More important, it will open the door for similar

suits, thus giving the people an edge in the battle against

pollution’.”

“He said that once the door is open, the court could in-

volve itself with other polluters because ‘other parties

would file suit the same way Ohio has to stop the menace.”

Lo RR EL ENGL AEN ARATE NI St RS Ee EN NEN EN OE HERESY

of states ...’’, should furnish judicial guidance applicable

to ‘‘the vastness of the Great Lakes Basin and its attendant

problems’’.

Such views support the conclusion that the purpose of

the Motion is to constitute this Court a super-authority

controlling pollution by exercise of its original jurisdic-

tion.

QUESTION PRESENTED

The question presented by the Motion of Ohio for Leave

to File its Complaint is limited solely to whether this Court

should assume original jurisdiction in the overall context

in which the question is presented.

STATEMENT OF THE CASE ;

Since only two cases are cited by Ohio, one of which may :

have been within the original and exclusive jurisdiction of

this Court, a resume of the facts (duly supported by the :

affidavit of Robert E. Dunn, the original having been sub- 7

mitted to this Conrt, reproduced in its entirety as Appendix :

Il), is appropriate. 4

From 1938 to March 24, 1970, Wyandotte has operated

its mereury cell chlorine-caustic soda plant at Wyandotte,

Michigan, and discharged certain waste waters into the

Detroit River, subject to frequent surveillance of its ac-

tivities by the Michigan Water Resources Commission

(and its predecessor, the Michigan Stream Control Com-

RASA

2. Contrast may be made of the facilities of this Court with the

position of the single State, Michigan, whose Water Resources

Commission consists of one hundred ten (110) employees, of

whom seventy (70) are assigned to pollution matters. Without

endeavoring to analyze existing Federal staffing of the Depart-

ment of the Interior (including the Federal Water Quality Ad-

ministration, the Bureau of Commercial Fisheries, and other re-

lated groups), the proposed Environmental Protection Adminis-

tration is reported to involve six thousand (6,000) employees and

a preliminary budget of $1,400,000,000. Air and Water News,

Vol. 4, No. 28, McGraw Hill, July 13, 1970.

STA RRS EPS OT ELL RAMI MLN, PASI IRN E ST MERRY

a

mission), the International Joint Commission and other

commissions and agencies.

The Canadian government on March 23, 1970 banned

the taking of fish from Lake St. Clair, geographically

situated twenty miles upstream from Wyandotte’s plant,

after having found concentrations of ‘‘mereury’’ in cer-

tain fish at levels deemed unsafe by such government.

Upon advice of this action, Wyandotte conducted in-

tensive studies of its own plant operation, and on April 3,

1970 obtained preliminary approval from the Michigan

Water Resources Commission for a proposed treatment

method, installed on April 10, 1970.

On April 16, 1970, Wyandotte closed the plant temporarily

in response to a restraining order issued by the Circuit

Court of Ingham County, Michigan. Such restraining order

was dissolved as a result of a Stipulation signed and Con-

sent Order entered respectively on April 22 and 23. The

Consent Order is annexed hereto as Appendix III.

Recycling of waste waters into brine wells was approved

by the Michigan Water Resources Commission and the

plant reopened on April 26, 1970. Since that date, all waste

waters from the mereury cell process have been recycled,

and no mercury has been discharged into the Detroit River,

as verified by tests by the Federal Water Quality Admin-

istration.

The Governor of Ohio on April 12, 1970, issued an Ex-

ecutive Order banning taking of fish from Lake Erie, which

order was substantially rescinded on April 22, 1970, except

as to walleye pike.

3. Reported by Mr. Van Den Berg, Transcript, LEEC, p. 663;

Appendix IV, p. 23a.

4. Executive Order, April 12, 1970, filed April 13, 1970; Executive

Order, April 22, 1970, filed April 23, 1970.

5

On April 21, 1970, Secretary of the Interior Hickel or-

dered the convening of the Lake Erie Enforcement Con-

ference, pursuant to the Federal Water Pollution Control

Act as amended, and such conference began its delibera-

tions on June 3, 1970. Ohio is a party to such conference.

The Motion For Leave to File Complaint was filed herein

on April 28, 1970, and a copy was served on Wyandotte’s

registered agent in Cleveland, Ohio on April 29, 1970.

Testimony of expert witnesses at the hearing of the Sub-

Committee on Energy, Natural Resources, and the En-

vironment of the Senate Commerce Committee, and at the

hearing before the Department of Natural Resources of the

State of Wisconsin, as well as before the Lake Erie En-

forcement Conference, have suggested the need for sub-

stantial additional research to determine the source and

role of numerous contributions of mereury to the environ-

ment as related to the concentration of mercury in fish, and

have further suggested the requirement of substantial

additional research in identifying the effect, if any, upon

human beings, and the determination of appropriate

tolerance levels and discharge limitations which might be

established in the public interest.

ARGUMENT

LEAVE TO FILE COMPLAINT HEREIN SHOULD

BE DENIED.

NO AFFIRMATIVE RELIEF IS IN FACT INVOLVED.

The Statement of the Case outlined above demonstrates

that no mercury or mercury compounds were being dis-

charged by Wyandotte on the date the State of Ohio filed

its motion in this court. Wyandotte had consented to refrain

from disposing of any waste products containing mereury

prior to that time. No facts exist (or existed at the time

of the filing of the motion by Ohio) upon which affirmative

BEE OMEN ANE PATI EES AE TAL RAIL IY

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relief could have been or can be granted.

The emergency alleged in the motion and brief of Ohio

does not exist. Ohio permits the taking, selling and buying

of fish from the waters of Lake Erie, with the exception

of Walleye Pike, and has granted such permission since

April 23, 1970, five days before the motion of Ohio was

filed in this court.

No emergency situation exists which would justify in-

voking this Court’s original jurisdiction. The relief prayed

is essentially moot.

H

FILING OF THE COMPLAINT WOULD CONFLICT

WITH DECLARED NATIONAL AND _ INTERNA-

TIONAL POLICY, AND IS CONTRARY TO

DETAILED PROCEDURES WHICH HAVE BEEN

ESTABLISHED FOR THE F™SOLUTION OF THE

PROBLEMS OF WATER POLLUTION.

(A) Filing of the Complaint would subvert the man-

datory conference required by the Federal Water Pollution

Control Act © and produce a flood of litigation in this

Court.

While neither Ohio nor Michigan has deemed reference

to the Act or the proceedings thereunder to which they are

parties to be of significance in this case, the Act must be

considered.

Section 1 (a) (1) of the Act (33 U.S.C. Section 466 (a))

reads as follows:

5. The Federal Water Pollution Control Act, June 30, 1948, C. 758,

62 Stat. 1155, as amended by: The Water Pollution Control Act

Amendments of 1956, July 9, 1956, C. 518, 70 Stat. 498; Pub. 1.

86-70, June 25, 1959, 73 Stat. 148; Pub. L. 86-624, July 12, 1960,

74 Stat. 204, 205; The Federal Water Pollution Control Act

Amendments of 1961, July 20, 1961, Pub. L. 87-88, 75 Stat. 204;

The Water Quality Act of 1965, Oct. 2, 1965, Pub. L. 89-234, 79

Stat. 903, The Clean Water Restoration Act of 1966, Nov. 3, 1966,

Pub. L. 89-753, 80 Stat. 1246; and the Water Quality Improve-

ment Act of 1970, P.L. 91-224, 84 Stat. 91, all as set forth in Title

33 U.S.C. §466 et seq.

LORS TE NSE eae i shi bad _d

7

‘‘The purpose of this Act is to enhance the quality

and value of our water resources and to establish

a national policy for the prevention, control, and

abatement of water pollution.’’

Declaration of such national policy was described as a

major provision of the Act in House Report No. 215. Public

Works Committee, March 31, 1965. Section 1(b) of the Act

(33 U.S.C. Section 466 (b)) refers to ‘‘. .. the exercise of

jurisdiction over the waterways of the Nation and .. . the

benefits resulting to the public health and welfare by the

prevention and control of water pollution .. .’’

The Act must be interpreted and applied in light of the

broad sweep of the commerce power, pursuant to which it

was enacted.

Ohio has suggested the applicability of Federal legisla-

tion to this case by alleging in its complaint that the actions

of Wyandotte were in violation of ‘‘statutes of the United

States’’. In seeking to invoke the jurisdiction of this court,

however, Ohio has proceeded in a manner inconsistent with

the Act.

This legislation constitutes a comprehensive scheme

established by Congress to combat all aspects of water

pollution in the United States. Pollution of interstate

waters is specifically covered in Section 10 (d) of the Act

[33 U.S.C. §466g (d)] which sets out the four-stage proce-

dure to be employed when pollution discharges in one state

affect the health or welfare of people in another state. If

such a situation exists or is alleged to exist it is mandatory

that the Secretary of the Interior call a conference to in-

vestigate the problems and to make recommendations. At

the conclusion of the conference the Secretary must allow

the appropriate state water pollution control agency to

take necessary remedial action. If remedial action is not

taken the Secretary must call a public hearing before a

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8

specially constituted hearing board to resolve the probiem,

If this public hearing does not result in effective action

the Secretary of the Interior is autherized to request the

Attorney General to bring a court action in a United

States District Court on behalf of the United States,

Section 19 (h) of the Act [33 U.S.C. § 466g (h)] states:

‘*The Court shall receive in evidence in any such

suit a transeript of the proceedings before the board

and a copy of the board’s recommendations and shall

receive such further evidence as the court in its

discretion deems proper. The court, giving due con-

sideration to the practicability and to the physical

and economic feasibility of securing abatement of

any pollution proved, shall have jurisdiction to enter

such judgment, and orders enforcing such judgment,

as the public interest and the equities of the case

may require.’’

Were there administrative failure (Federal and State) to

achieve the results contemplated by the Act, cases such as

this would come before a United States District Court (hav-

ing the benefit of all prior consideration of the matter)

and could ultimately come before this Court in the usual

course of its exercise of appellate review.

It is reasonable to conclude that the Act’s scheme, al-

ready implemented by the Secretary in this instance, was

adopted to conform to views expressed in New York vy.

New Jersey, 25€ U.S. 296 (1921) at 313, where this Court

said:

‘‘We cannot withhold the suggestion, inspired

by the consideration of this case, that the grave prob-

lem of sewage disposal presented by the large and

growing populations living on the shores of New

York Bay is one more likely to be wisely solved by

co-operative study and by conference and mutual!

concession on the part of representatives of the states

so Vitally interested in it than by proceedings in any

court, however constituted.’’

Those views of this Court, undoubtedly the result of the

thirteen years required for disposition of that case, were

used as support for Senate Bill 649, pending in the 88th

Congress, by Mr. Murray Stein (then, as now, the Assistant

Commissioner for Enforcement, FWPCA).

With particular reference to the problems of interstate

pollution, the remarks of Mr. Stein point up the strong and

effective position of the conference method in resolving

precisely the problems here presented, of discharges from

several states affecting interstate waters, and the equitable

concepts involved.

Mr. Stein has already declared in the pending Lake Erie

Enforcement Conference :

‘*T don’t think we can ask communities in Michigan

to do something without taking reference to what

they are doing in the others.’’ ©

The facts as developed at the Lake Erie Enforcement

Conference, in which Ohio is a conferee, show that dis-

charges of mereury were continuing from several Ohio

sources, in one case in the face of a cease and desist

order from the Ohio Pollution Control Board.”

6. U.S. Congress, Senate Hearings, Committee on Public Works,

Special Subcommittee on Air and Water Pollution, 88th Cong.,

lst Sess., p. 47.

- Ibid., pp. 58-59 The question of Senator Miller postulates pre-

cisely the situation here present. The answer of Mr. Stein is

illuminating.

- Typed Transcript of Proceedings, June 3-4, 1970, Fifth Session

of the Conference in the Matter of Pollution of Lake Erie and its

Tributaries, p. 679. Not yet printed. Available prior to publica-

tion, Ace-Federal Reporters, Inc., 415 Second Street N.E., Wash-

ington, D.C. 20002. Referred to hereinafter as Transcript, Lake

Erie Enforcement Conference. Portions of such transcript are

annexed as Appendix IV.

- Ibid., p.p. 682-3 Discharges sag end identified were those of

Diamond Shamrock, Painesville, Ohio; Cleveland Westerly and

Southerly sewage treatment plants; Euclid sewage treatment

plant.

- Ibid., p. 682. The discharge involved was that of Detrex Chemical

Company.

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10

The ‘‘co-operative study . . . and mutual concession”

visualized by this Court in New York v. New Jersey, supra,

and the ‘‘moral suasion of the conference technique’ wil]

in fact be frustrated if a conferee may separately proceed

in this Court without concern for its own delinquencies,

The foregoing is entirely consistent with the carefully

structured concept of primary administrative jurisdiction,

ennunciated by this Court in U.S. v. Western Pacific R.

Company, 352 U.S. 59 (1956), Far East Conference v. U.S,,

342 U.S. 570 (1952) and Texas & Pacific Railway Co. vy,

Abilene Cotton Oil Co. 204 U.S. 426 (1907). If further

support were required for the proposition here advanced,

including a weighing of the probable Congressional intent

in providing the conference method, it would be found in

that concept.

The filing of the Complaint in this action would subvert

the carefully designed control scheme incorporated in the

Act, result in a flood of similar litigation in this Court,

and replace the required action of the Secretary with the

involvement of this Court. It might appropriately be noted

that in disposing of the case of New York v. New Jersey,

supra, this Court gave great weight to a stipulation de-

veloped pursuant to a conference.

Congressional compliance with this Court’s invitation

to deal with such matters by the conference method should

not be rejected by permitting the filing of the Complaint.

(B) Filing of the Complaint would discourage state

action as mandated by the Federal Water Pollution Control

Act.

§1(b) of the Act (33 U.S.C. §466 (b)) provides in part

as follows:

11. Appendix I.

fh irate ee

11

‘‘In connection with the exercise of jurisdiction

over the waterways of the Nation and in consequence

of the benefits resulting to the publie health and wel-

fare by the prevention and control of water pollution,

it is declared to be the policy of Congress to recog-

nize, preserve, and protect the primary responsi-

bilities and rights of the States in preventing and

controlling water pollution. ..’’

§1(c) of the Act (33 U.S.C. §466(c)) provides:

‘*Nothing in this Act shall be construed as impair-

ing or in any manner affecting any right or jurisdic-

tion of the States with respect to the waters (includ-

ing boundary waters) of such States.’’

The legislative history makes clear that the Congress

had in mind such preservation of basic state responsibili-

ties and jurisdiction, as a part of an overall combination.”

The tie between these expressions and the national policy

was described thus by Mr. Yates:

‘* ., nothing is so local as a drop of water, or so

national as what we do with it.’’ °®

§10(b) of the Act (33 U.S.C. §466g¢(b)) provides:

‘*Consistent with the policy declaration of this Act,

State and interstate action to abate pollution of in-

terstate or navigable waters shall be encouraged and

shall not, except as otherwise provided by or pursu-

ant to court order under subsection (h) of this seec-

tion, be displaced by Federal enforcement action.’’

In the Environmental Quality Improvement Act of 1970

(Public Law 91-224, 84 STAT. 114) Congress reaffirmed :

the focus on a primary state responsibility in the resolu-

ee Se ee

12. 111 Cong. Rec. 8678 (1965)

Mr. Reuss — “In formulating these amendments con-

cerned Congressmen have been searching for the combina- ,

tion of programs, responsibilities and jurisdictions that

— best enable us to halt the growing pollution of our :

streams.”

3. 111 Cong. Rec. 8674 (1965)

pe: AOS RS UE Ree TRE

12

tion of problems of water pollution. Section 202 provides:

(b) (1) The Congress declares that there is a

national policy for the environment which provides

for the enhancement of environmental quality. This

policy is evidenced by statutes heretofore enacted

relating to the prevention, abatement and control of

environmental pollution, water and land resources,

transportation, and economic and regional develop.

ment.

(2) The primary responsibility for implementing

this policy rests with State and local governments.

(3) The Federal government encourages and sup-

ports implementation of this policy through appro-

priate regional organizations established under

existing law ...”’

The enforcement mechanisms under Section 10 (c) or

(d) of the Act [33 U.S.C. §466g(c) and (d)] require the

making ef recommendations by the Secretary to the State

authorities. Under Section 10(f} (1) of the Act [33 U.S.C.

§466¢(g¢) (1)], findings are directed to be reported to

‘the State water pollution control agency ... of the State

or States where such discharge or discharges originate”’.

Only following failure of such state or states to act is

Federal enforcement possible.

In respect of the jurisdiction of other States, Section 4 of

the Act (33 USC (466b) was structured to permit ‘‘indivi-

dual states having no jurisdiction over the waters that are

beyond the State lines ... (to) ... create a regional

compact."

Absent such regional or interstate compact, the ‘‘national

policy’’ of the Act places on Michigan that primary re-

sponsibility emphasized in §1(b) of the Act. Its Water

4. Mr. Lausche, 111 Cong. Rec. 1543 (1965)

rrr ort

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13

Resources Commission is obviously the ‘‘appropriate state

water pollution control agency’’ referred to in Section 10

(e) of the Act (33 U.S.C. §466g(e)). It is its action which is

to be encouraged.

While neither Michigan nor Ohio deems reference to its

own pollution control agencies important, although it has

already been held in Michigan that court action must follow

rather than precede agency action,”” the functioning of

such agencies is important to the implementation of the Act.

Availability of concurrent action by this Court would

in fact discourage state action, since this Court would

simultaneously be endeavoring to resolve the same issue,

a fact which would be mere apt to produce temerity than

alacrity, and to induce that continued ‘‘neglect of states’’

which is here relied on by Michigan in support of the

Motion.

(C) Filing of the Complaint would contravene the

procedures of the Boundary Waters Treaty of 1909.

Ohio relies on the treaty between Great Britain and the

United States of January 11, 1909 in invoking the jurisdic-

tion of the Court, and alleges that citizens of the United

States and Canada are polluting the boundary waters be-

tween these countries in violation of the treaty.

Whether the treaty has relevance to Wyandotte is not

material, since by seeking to invoke the jurisdiction of this

Court, Ohio ignores the declared policy and those imple-

menting procedures provided in the treaty, which were

established for the express purpose of solving disputes

%. White Lake Improvement Association V. any of Whitehill, 22

Mich. App. 262 (1970). Absent the stipulat ion entered into in the

fil), application of the White Lake case als Corporation y ave be

quired ak eas coe ee ter Gee ae Ge

14

regarding complex issues of international water pollution.

A purpose of the treaty is set forth as follows:

‘* . . to prevent disputes regarding the use of

boundary waters, ... and to make provision for the

adjustment and settlement of all such questions as

may hereafter arise ...’’

Disputes pertaining to alleged pollution of boundary

waters were specifically covered by this treaty in Art. IV,

as follows:

‘« .. It is further agreed that the waters herein

defined as boundary waters and waters flowing across

the boundary shall not be polluted on either side to

the injury of health or property on the other.”’

The International Joint Commission hereinafter re.

ferred to as the IL.J.C.) was created to resolve such

boundary water disputes (Article VII).

Article IX of the treaty specifies procedures for settling

‘questions or matters of difference’’ between the High

Contracting Parties.

Pursuant to Article IX of the treaty the LJ.C. has dealt

specifically with international water pollution on several

occasions prior to the filing of this motion. Among the

boundary waters which were the focus of LJ.C. pollution

proceedings were Lake St. Clair, the Detroit River, and

Lake Erie, the same waters which are involved in the case

at bar. (Dockets 4, 53 and 55 of the L.J.C.) As a result of

the I.J.C.’s proceedings in Dockets 53 and 55, both govern-

ments requested this body to establish a technical board

of advisors to supervise and control pollution of these

specific waters. This board of experts is still in existence

and makes semi-annual reports on pollution of these waters

to the I.J.C., which is the proper forura to resolve inter-

national aspects of alleged pollution of the boundary waters

between Canada and the United States.

POLIS ALE EE EEE IPO EEL OO ME —

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15

ha, I

THE FACTUAL AND LEGAL SITUATION DIFFERS

FROM THE CASES RELIED ON BY PLAINTIFF.

(A) New Jersey v. New York City, supra. relied on by

Ohio, would appear to have been a case within the original

and exclusive jurisdiction of this Court, and thus to have

presented a problem having a vastly different legal focus.

Even if this were not so, however, such case involves the

application of factors clearly enunciated by this Court in

Georgia Vv. Tennessee Copper Company, analyzed below.

As cases involving original and exclusive jurisdiction,

Missouri v. Illinois, 180 U.S. 208 (1901) and North Dakota

y. Minnesota, 263 U.S. 265 (1923) (cited by Michigan) are

not decisive of the question here presented, since this case

does not involve a suit between two sovereign States.

(B) The ease differs from Georgia v. Tennessee Copper

Company, supra., not only in that this case cannot be tried

on affidavits, but also in that:

(1) No allegation is made of any effort to obtain

relief by action of the State of Michigan.

In Tennessee Copper Company, plaintiff alleged

‘*a vain application to the State of Tennessee

for relief,’’ 206 U.S. 230, 236.

No such allegation is, or could be, made here, as the

Statement of the Case and the documents in Appen-

dix III amply document.

(2) Ohio has numerous alternatives.

In Tennessee Copper Company, this Court noted

that ‘‘the alternative to force is a suit in this Court”’,

at 206 U.S. 237, citing Missouri v. Illinois, 180 U.S.

208, 241. The ‘‘alternative’’ referred to is obviously

the obtaining of the relief prayed.

"SREP ote ee

ie

iis SERMON AN

IT ee ee

16

Methods of obtaining such relief, as to Wyandotte,

include:

(i) Actions by the State of Michigan, which

encompass:

(a) Action of the Michigan Water Resources

Commision already taken;

Such Commission has primary adminstrative juris-

diction of water pollution matters in the State of

Michigan,°” and is that ‘‘State water pollution con-

trol agency ... of the State... where such discharge

... originates’’, as referred to in Section 10(f) of the

Federal Water Pollution Control Act, as amended,

33 U.S.C. Section 466g (f), and the ‘‘appropriate

State water pollution control agency’’ referred to in

Section 10 (e) of the Act.

(b) Action of Michigan courts, already taken.

(ii) The Lake Erie Enforcement Conference.

Such Conference was convened by order of the

Secretary of the Interior on April 21, 1970, and iis

deliberations commenced on June 3-4, 1970 in the

City of Detroit. Ohio is a conferee. The Conference

is specifically considering questions relating to the

subject matter of this litigation,“” as well as broader

questions.

(iii) The International Joint Commission.

As set forth in II (C) above, the Treaty specifies

the methods of invoking the action of the interna-

tional Joint Commission.

(iv) Other Courts

16. White Lake Improvement Association V. City of Whitehall, op.cit.

17. See the portions of the report of the Bureau of Commercial

Fisheries, Transcript, LEEC, pp. 250-258; Appendix IV, Part A

pp. 10a, lla.

BREACH apres Dap Cnt eee Ee

—-_ DEVLIN LT RG LASALLE ELLE LEE EARN AS LE SSAA NEN A ~ |

17

This Respondent does business in the State of

Ohio, and has a duly appointed Registered Agent in

such State. Indeed, the presently pending Motion was

served on such agent on April 29, 1970.

It is difficult to imagine a more complete contrast .

to the situation presented in Georgia v. Tennessee

Copper Company, supra. If, as suggested by Michi-

gan, the lack of alternatives is ‘‘Central to this .

Court’s cognizance of claims under original jurisdic-

tion’’, it is evident that the test is not met, the relief

prayed having already been obtained. :

(3) No risk of great damage exists.

In Tennessee Copper Company, this Court varied ;

its procedures because ‘‘there was ground to fear .

that great and irreparable damage might be done’’,“” ;

thus suggesting that the exercise of jurisdiction

might have been partially predicted thereon. f

In the Lake Erie Enforcement Conference, the H

Federal Water Quality Administration has reported '

that this defendant is not discharging mereury from '

its plant. °

All action which this Court might order of an :

affirmative nature was either already taken prior to 3

filing of the Motion or is under careful consideration F

by such Conference. :

CONCLUSION :

It is, therefore, respectifully submitted that this Court p

should deny the motion of the Attorney General for the ‘.

State of Ohio for leave to file the complaint. ;

MILTON F. MALLENDER JOHN M. MOELMANN :

J. DONALD MeLEOD THOMAS J. WEITHERS :

ROBERT T. MecBRIDE 1 North LaSalle Street :

1022 Ford Building Chicago, Illinois 60602 :

Detroit, Michigan 48226 f

18. 206 U.S. 230, at 236. e

IN THE

Supreme Court of the United States

OCTOBER TERM, 1969

STATE OF OHIO. EX REL., PAUL W. BROWN, Attorney

General of Ohio, State House Annex, Columbus, Ohio 43215

Plaintiff,

—vs.—

WYANDOTTE CHEMICALS CORPORATION, A corporation

existing under the laws of Michigan, located at 1609 Biddle

Avenue, Wyandotte, Michigan,

DOW CHEMICAL COMPANY OF CANADA, LIMITED, A cor-

poration existing under the laws of the Dominion of Canada,

located at Sarnia, Ontario,

and

THE DOW CHEMICAL COMPANY, A corporation existing

under the laws of Delaware, located at Midland, Michigan,

Defendants.

APPENDICES

THE INLAND PRESS, DETROIT, MICHIGAN

OO es . NRO MBE A Sd: <a ntoanee Oe

Appendix 1 la

APPENDIX I

The Cleveland Press

D. 393,191

May 15, 1970

Press Ohio Bureau

COLUMBUS — Attorney General Paul W. Brown

campaigned for the Republican gubernatorial nomination

against crime but particularly against pollution and _ be-

lieves the super weapon to be used in the battle is the

U.S. Supreme Court. :

Brown said that is why he filed his anti-pollution case

against two firms doing business at three locations on the

Great Lakes directly with the nation’s highest court.

Brown observed the court has handled several pollution

matters before. However, it has been many years since an

anti-pollution case has been filed with the Supreme Court.

The attorney general’s $8 million suit and injunctive

action names Dow Chemical Co. of Canada for its plant at

Sarnia, Ontario; the Dow Chemical Co. at Midland, Mich.

and the Wyandotte Chemical Corp. at Wyandotte, Mich.

All three plants were accused by Ohio, through the at-

torney general, of dumping pollutants, particularly mer-

eury, into Lake Erie, thus endangering food, water and

recreational resources of the people of the state.

According to Brown, if the court accepts jurisdiction, the

battle against pollution will be on in earnest. The time for

talk will be over.

Brown explained that if the Supreme Court issued an

injunction to stop polluting the streams, ‘‘you know the

company against whom the injunction was issued will stop,

period. More important, it will open the door for similar

suits, thus giving the people an edge in the battle against

pollution.”’

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The attorney general said the suit against the companies

‘attacks the problem of pollution of the Great Lakes repre.

senting Canada, all dealing with pollution. (stc.)

In 1907, the State of Georgia invoked the original juris.

diction of the Supreme Court in an action against a Tennes-

see firm which Georgia accused of polluting the air with

noxious fumes.

Georgia won that test. Then, in 1931, New Jersey sued

New York to prevent New York from dumping garbage

in the ocean which was washing up on the Jersey shore.

The court accepted jurisdiction and appointed a master

to hear the complaint and make recommendations.

According to Brown, both of those cases are the prece-

dents which will allow the high court to accept jurisdiction

in this suit.

He said that once the door is open, the court could in-

volve itself with other pollutants and polluters because

‘‘other parties would file suit the same way Ohio has to

stop the menace.”’

The attorney general is pinning his hope that the high

court accepts jurisdiction on two cases and a treaty be-

tween the United States and Great Britain, direetly. Why

can’t the court be preoccupied with the rights of the

majority and involve itself in clean water and clean airt”

APPENDIX II

AFFIDAVIT

ROBERT E. DUNN, being duly sworn and on oath, de-

poses and says as follows:

I am the Secretary and legal director of Wyandotte

Chemicals Corporation, a Michigan corperation, (herein-

after called ‘‘Wyandotte’’), and am familiar with the

origin and circumstances of matters relating to the cap-

tioned litigation.

The chlorine-caustic soda plant of Wyandotte situated

at Wyandotte, Michigan,, in the South Works, employing

the mercury cell process for the production of chlorine and

caustic soda, was operated on essentially the same prin-

ciples from 1938 through the early part of 1970, insofar as

the discharge of waste waters from the mercury cell

chlorine caustic soda plant is concerned. During such

period, the South Works was subject to periodic investi-

gation and study by the Michigan Stream Control Commis-

sion, its successor the Michigan Water Resources Commis-

sion, the International Joint Commission, and other public

agencies and bodies. Content of the discharges from the

South Works was in fact governed by stipulation between

Wyandotte and the Michigan Water Resources Commis-

sion, executed in 1966, in which no mention was made of the

discharge of mercury.

I was personally advised of public interest and concern

in levels of mercury concentrations in fish about March 24,

1970, through newspaper articles relating to the banning of

fishing by Canada in Lake St. Clair. On information and

belief, other personnel of the company were advised on such

A ES ee ee ere ee 6 mee

Appendix Il 3a

ta Appendiz II

date of an interest on the part of the Michigan Water Re-

sources Commission in the eperations of the South Works,

although the South Works is situated in excess of twenty

miles downstream from Lake St. Clair.

Wyandotte immediately began studies and surveys re-

lating to the operation of its mercury cell processes. Alter-

nate operating systems were tentatively approved on the

basis of such surveys on April 1, funded on April 2, and

reported to the Michigan Water Resources Commission

as to operation of the Wyandotte, Michigan plant on April

3, 1970, on which date such tentative proposals were ap-

proved.

Proposals so approved were implemented and placed in

operation on April 10, 1970, and the plant was operated in

accordance with such revised operating techniques until

April 16, 1970, on which date the plant was closed by reason

of the issuance of an ex-parte restraining order in the

matter of Kelly, Attorney General v. Wyandotte Chemicals

Corporation, filed in the Cireuit Court for Ingham County,

Michigan.

A stipulation was executed on April 22, 1970 between

the Company and the Attorney General of the State of Mich-

igan, pursuant to which a consent Order was entered in

the above entitled litigation on April 23, 1970. Necessary

approvals of the Michigan Water Resources Commission

were obtained, and the plant commenced operation on April

26, 1970, utilizing a recycling system pursuant te which all

waste waters from the mercury cell process were first

treated and then recycled into brine wells.

The recycling of waste waters from the mercury ceili pro-

PLS EEOC Press 9s pao .

Appendiz Il 5a

cess has continued to this date, and remains a requirement

of the consent Order referred to above.

In my capacity as Secretary and legal director of the

Company, I have attended hearings of the Sub-Committee

on Energy, Natural Resources and the Environment of the

Senate Commerce Committee, held May 8, 1970, in Mt.

Clemens, Michigan, the Honorable Philip A. Hart, presid-

ing, and hearings before the Department of Natural Re-

sources of the State of Wisconsin, on May 15, 1970

(Wyandotte having a similar plant in Wisconsin). Limited

testimony was offered at such hearings suggesting that

miniscule concentrations of mercury present in waters or

bottom muds might, through processes not fully known,

become concentrated in certain species of fish. Testimony

was offered by the Food & Drug Administration, the Fed-

eral Water Quality Administration, the Michigan Water

Resources Commission, and other persons at the hearing of

the Senate Sub-Committee, and testimony was offered by

representatives of the Department of Public Health, and a

representative of the Canadian Fishery Research Board at

the hearings for the Department of Natural Resources.

+

It is a fair summary of the testimony so offered that the

resolution of questions relating to discharge of mercury

in the environment involves a multitude of sources of

mercury in different forms, whose overall contribution to

the concentration of mercury in fish is currently unknown;

that the precise application of Swedish research relating to

such processes may or may not have application to experi-

ences in American rivers and lakes; that the determination

of the process of such concentration in American rivers

and lakes and possible effect on human beings will require

further research and study, and the setting of appropriate

er oe

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6a Appendiz Il

tolerance limits based upon such additional research and

study.

Further deponent sayeth not.

IN WITNESS WHEREOFP, I have hereunto set my

hand this 23rd day of July, 1970.

/s/ ROBERT E. DUNN

STATE OF MICHIGAN

COUNTY OF WAYNE—s«s.

Subscribed and sworn to before me this 23rd day of July,

1970.

IRENE E. POUPORE,

Notary Public, Wayne County, Michigan

My Commission Expires March 17, 1974.

RR eR em etre or i in ee ee ee

rT oe

Appendiz Il 7a

APPENDIX II

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY

OF INGHAM

FRANK J. KELLEY, Attorney General for the

State of Michigan, for and on behalf of

the People of the State of Michigan and

its agencies,

Plaintiffs,

—Vs.— No. 11569-C

WYANDOTTE CHEMICALS CORPORATION,

a Michigan Corporation,

Defendant.

ORDER

At a session of said Court held in the Court House in

the City of Lansing, County of Ingham, on this 23rd day of

April, 1970.

PRESENT: HONORABLE SAM STREET HUGHES,

Circuit Judge

Upon reading the Stipulation providing for the entry

of a Consent Order heretofore entered into between the

Plaintiff Frank J. Kelley, Attorney General for the State of

Michigan, for and on behalf of the People of the State of

Michigan and its agencies and the Defendant Wyandotte

Chemicals Corporation, and the Court being fully informed

in the premises. IT IS HEREBY ORDERED AND

DIRECTED that:

1) The temporary restraining order heretofore entered

in this cause on April 16, 1970 be and is hereby dissolved.

2) The defendant Wyandotte Chemicals Corporation

shal] not start up production utilizing the mercury cell

process until such time as the Chief Engineer of the Michi-

8a Appendix Ill

gan Water Resources Commission has inspected and ap-

proved the system to reeyele the process waste waters con-

taining mercury that may originate from the production of

products utilizing the mercury cell process.

3) Such approved recycling facilities as stated above in

paragraph two shall include chemical pretreatment of waste

waters so that the material that is recycled to the brine

formation shall have a mercury content that is reduced to

the greatest extent possible as judged by the Chief Engineer

of the Michigan Water Resources Commission.

4) On or before May 1, 1971, the defendant shall, as a

part of its operations, have installed, in accordance with

plans and specifications approved by the Chief Engineer of

the Michigan Water Resources Commission, above ground

reeyeling facilities that will enable the Company to retain

all wastes containing mercury.

5) That the aforesaid above ground recycling facilities

shall be so operated so as to prevent mercury losses to the

Detroit River and other waters of the state.

6) Any determination by the Chief Engineer of the

Michigan Water Resources Commission, as provided in

paragraph two, three, and four above, under this order

shall be subject to review by the Michigan Water Resources

Commission upon petition therefor filed by the defendant

within 30 days of such determination.

7) The Court shall retain continuing jurisdiction of this

cause for the purpose of making such further orders and

determinations as shall be presented to it by further peti-

tion of either party hereto after final disposition in accord

with the foregoing by the Michigan Water Resources Com-

mission. SAM STREET HUGHES,

A TRUE COPY Cireuit Judge

S. Ross Hilliard

Ingham County Clerk

Appendix IV 9a

APPENDIX IV

EXTRACTS, TRANSCRIPT OF LAKE ERIE

ENFORCEMENT CONFERENCE

(A) SUMMARY OF BUREAU OF COMMERCIAL

FISHERIES STATEMENT, pp. 250-251.

Based on analysis of all available data, the following

conclusions are drawn concerning the past, present and

future status of the commercial and sport fishery and re-

lated aquatic resources of Lake Erie.

1. Lake Erie has been the most fertile and productive

of all the Great Lakes. A total of 19 species have been

significant in the commercial landings at one time or an-

other. Annual combined U.S. and Canadian production has

fluctuated little in the past 50 years, averaging approxi-

mately 50 million pounds.

2. The value of the catch is declining, however, which

reflects the changing conditions of the fish stocks from high-

value to low-value species. High-value species like the

sturgeon, northern pike, whitefish, cisco, blue pike, and

sauger, have virtually disappeared from the catch. Walleye,

yellow perch, white bass, and channel] catfish constitute the

major remaining species of higher and medium value. These

species are declining and show signs of difficulty in per-

petuating themselves. Stocks of such less valuable species

as freshwater drum, carp, suckers, and goldfish are, with

few exceptions, greatly underexploited.

3. Prior to 1954, U.S. fishermen landed more pounds of

fish than Canadian fishermen. Now, however, the U. S.

eatch is less than 20 percent of the total catch from Lake

Erie.

4. Three States bordering Lake Erie have been intro-

ducing yearling coho saimon since 1968. Growth and sur-

vival have been relatively good. However, very little open-

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10a Appendix IV

lake research has been conducted and little is known about

the impact of coho salmon on other valuable fishery re-

sources such as yellow perch and smelt.

5. By most criteria accepted by limnologists, Lake Erie

is classified as a eutrophic lake with changing water quality

in both inshore and open waters. Industrial, municipal, and

agricultural pollution and enrichment of Lake Erie has

caused: (a) massive nuisance and toxic algal blooms of

Microcystic and Aphanizomenon, (b) destruction of the

valuable mayfly benthos in the western and central basins,

(c) a 20-fold increase in plankton, the diet staple for several

nuisance and low-value fishes that have undergone popula-

tion explosions in the last 15 years, (d) increased levels of

such pesticides as DDT and Dieldrin in fish flesh, (e) dan-

gerously high levels of mercury in many fishes, (f) the

destruction of spawning areas of some of our most valuable

fishes, and (g) disappearance of oxygen from the bottom

waters of the central basin during the summer.

6. The concentration of dissolved solids is still well

below levels directly lethal to fish and food organisms even

though solids have increased by 50 ppm since 1920. How-

ever, the continued accelerated rate of increase is cause for

future concern.

7. Warm water temperatures and high nutrient levels

have led to tremendous algae blooms. This organic pro-

duction has created in turn a large BOD during decomposi-

tion. Furthermore, reduced materials have accumulated in

the sediments over the years. The combined BOD and

chemical oxygen demand from these two phenomena have

caused widespread oxygen depletion in the bottom waters

of the western and central basins during periods of summer

thermal stratification. The consequence of this has been

widespread destruction of bottom organisms so important

Appendix IV lla

in the diet of many Lake Erie fishes. Any increase in

nutrient levels or average water temperatures will un-

doubtedly worsen this situation.

8. Pesticides, heavy metals such as mercury, phencls,

eyanides, acids and exotic inorganic and organic chemicals

are among the many outright pollutants discharged into

Lake Erie. Pesticide levels (DDT and Dieldrin) are mod-

erately low in Lake Erie fishes and all fall safely under the

5.0 ppm level set by the FDA. Mercury levels are, on the

other hand, dangerously high. Values in some walleyes

and white bass especially have exceeded the action level of

0.5 ppm set by the FDA.

9. Observations on walleye reefs during the 1969 spawn-

ing season suggest that the smothering effect of sedimenta-

tion on fish eggs and other bottom associated organisms

may be detrimental and a major factor in the decline of

some of our valuable fish stocks. Obviously, increasing

siltation is a serious problem that needs full attention by

the appropriate agencies now.

10. The historical record and current status of all the

valuable sport and commercial fishes in Lake Erie are

presented. The Bureau’s program of fishery-limnology

research on the fishery and aquatic resources of Lake Erie

is described with special emphasis on the continuing effects

of environmental degradation on the fishery and related

aquatic resources.

11. Practically and legally speaking, halting degradation

of the water quality of Lake Erie will require the establish-

ment of sound and workable water quality standards, in-

eluding standards and criteria for fish and aquatic life. This

is an area where acceleration of research is needed. Interim

standards will probably have to be set before the results

of such research become available.

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12. Because of their inherent sensitivity to subtle, long-

range environmental changes, fish and aquatic organisms

make excellent indicators of such changes. This has not

been recognized sufficiently in the past. As more expensive

and expansive pollution abatement programs are initiated,

more aquatic research on Lake Erie will be needed to meas-

ure the effects of such abatement programs.

(B) ADDENDUM FOR BUREAU OF COMMERCIAL

FISHERIES STATEMENT AT JUNE 3, 1970,

LAKE ERIE ENFORCEMENT CONFERENCE AT

DETROIT, MICHIGAN (pp. 252-8)

MERCURY IN FISH’?

by

Harry L. Seagran

Laboratory Director

BCF Technological Laboratory

Ann Arbor, Michigan

Current Situation

Late in 1969, following significant warnings of insidious

mereury pollution of the central provinces, studies were

quietly initiated by Canadian environmentalists to define

the situation. Shortly thereafter, several commercial

catches of fish (walleye, northern pike, bass, and jackfish)

taken from Lake Winnipeg, Cedar Lake, Saskatchewan

River, and Red River in the Province of Manitoba, Canada,

were detained by the Canadian Federal Department of

Fisheries and Forestries, because they contained mercury

residues deemed unsafe for human consumption. Concen-

trations of mercury in the fish ranged from 5 to 10 parts

1Taken from the paper “Mercury in Fish,” by Harry L. Seagran,

LIMNOS, The Magazine of the Great Lakes Foundation, Vol. 3,

No. 2, Summer, 1970.

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Appendix 1V 13a

per million (ppm). As an immediate result, more than

700,000 pounds of fish were confiscated and destroyed.

Further, all fish from the Saskatchewan River system of

Canada henceforth were to be held under detention and

tested for mercury before being exported. Mercury residues

less than 0.5 ppm (wet weight) were required to clear the

emergency embargo. Somewhat later, on April 21, 1970,

the Provincial Government announced the general closure

of these waters to commercial fishing and also warned

anglers of the danger of eating fish taken from these

sources, because of their relatively high degree of mercury

contamination.

As a result of concurrent testing by Ontario officials,

the Canadian government embargoed all commercial fish

taken from Lake St. Clair effective March 23, and at the

same time cautioned the public against eating fish taken

from this lake. Ever widening ripples spread from this

first public announcement of the mercury contamination

problem. Probably the most staggering revelation at this

time, however, was the depth of information that had been

developed in Canada on this matter over the last 18-month

period, with apparently no awareness in this country as to

the seriousness of the situation until mid-March 1970, when

the matter was made public. A total ban on taking fish for

any purpose from Lake St. Clair and the St. Clair, Clay,

Wabigoon, and Detroit Rivers was subsequently announced

by Canadian authorities on April 6. These actions were

taken after Canadian officials found levels of mereury in

walleye, pike, and other species taken from Lake St. Clair

considerably in excess of the 0.5 ppm action level set by the

Canadian Food and Drug Directorate. Typical of prelimin-

ary data (wet weight basis of market form) that resulted

in the Canadian closure of the Lake St. Clair commercial

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l4a Appendix IV

fishery were, for walleye, 1.3-1.9 ppm; sucker, 0.8 - 20

ppm Hg. Less predacious species and non-bottom feeders

showed slightly lower values, according to Canadian spokes-

men. Some values as high as 5 ppm in walleye muscle from

Lake St. Clair were reported, however.

Following further testing, a similar embargo on walleye

and yellow perch from Lake Erie was announced by the

Canadian government April 1. Preliminary Canadian

mereury data on walleye muscle from western Lake Erie

was in the range 0.50-2.0 ppm; perch ranged downward

from slightly less than 0.5 ppm; smelt appeared well below

0.5 ppm (0.05-0.20 ppm). Early in May, the Canadian

walleye and white bass fisheries were closed in Lake Erie,

as well as walleye in southern Lake Huron, because of the

consistent high degree of contamination shown by these

species.

United States and Great Lakes states public health

officials immediately began investigating the matter from

the standpoint of a possible public health threat in this

country. In the absence of useful data on the mercury con-

tent of commercial—and sport-caught fish in this general

area, they initially took a cautious, wait and see attitude.

As data became available on fish taken from U.S. waters

of the Great Lakes, however, Ohio, Michigan, and New

York began instituting varying degrees of fishing bans.

Lake St. Clair and connecting waterways have been closed

to all types of fishing, with general closures on walleye in

western Lake Erie. Embargoes on practically all Lake

Erie food fish also are in effect; commercial catches of

walleye, yellow perch, and white bass are being rigorously

checked before release to the market. Current FDA and

state action levels in the U.S. also are at 0.5 ppm, although

FDA agency officials have expressed their concern that this

Appendix IV 15a

level may be undesirably high to adequately protect human

health.

There are no official tolerances in the United States or

Canada for mercury residues in any food products. The

World Health Organization has not established a tolerance

for mercury residues in fish, although it has set a recom-

mended general tolerance for mercury in foods at 0.05

ppm. Sweden has set a tolerance of 1 ppm in fish. The U.S.

and Canadian Food and Drug Directorates, on the other

hand, have established the interim administrative guide-

line (action level) at 0.5 ppm for this food commodity.

This figure should be regarded as interim, however, pend-

ing additional toxicological and survey studies in progress.

Fish present a particular problem, because of a relatively

high natural background level of mercury and the role of

this commodity in the human diet and its value to the ree-

reational sector. Since early April 1970, several hundred

fish samples from the Lake Erie-St. Clair area have been

examined by several state and federal agencies. Over one-

half of all samples examined thus far from Lake St. Clair

exceed 0.5 ppm; about one-fourth of those taken from Lake

Erie are in excess of this value. Relatively few values less

than 0.2 ppm have thus far been obtained for fish of the

highly valuable Erie - St. Clair fishery. A significant lower-

ing the current action level could therefore have far-reach-

ing impact on the recreational and commercial fisheries of

this area.

Sources of Contamination

Canadian authorities have now revealed the history of

their contamination problem. As in the earlier recognized

Swedish situation, it was largely attributed to a number of

chlor-alkali plants using a mobile mercury electrode, losing

the metal to the environment as a contaminant of the dis-

EI LEME OE TI LIN ENE CN SAE NORE LEENA i DIO eM CRN

16a Appendix IV

charged, exhausted electrolytic brines. It is estimated

that the chlor-alkali industry loses approximately 0.45

pounds of mereury to the environment per ton of chlorine

produced. Based simply on chlorine tonnage figures, the

loss of mereury may therefore be as much as 1.2 million

pounds per year.

Not overlooked as sources of contamination though are

probable contributions from other users of mereury in

the Great Lakes area; these are for slimicides in pulp and

paper mills, in plastics manufacture (vinyl chloride),

agricultural uses (seed dressing and insecticides), antifoul-

ing paints (fungicides), and others. During the last decade

the annual consumption of mercury has risen from an

average of 4 million to an estimated 6 million pounds per

year. The major users of mercury in this country are

manufacturers of electrical apparatus (25% ) and the chlor.

alkali industry (20%). Those uses which present the

greater potential for pollution of the environment are in

chlorine and caustic soda production and agricultural and

related uses (as mildew proofing compounds and pesti-

cides); this latter use comprises about 1 million pounds

annually.

In the St. Clair area, specific losses of up to 200 pounds

of mereury wastes per day have been discharged by the

chlor-alkali industry at Sarnia, Ontario, according to

Canadian authorities. Several other plants in this general

area, both in Canada and the U.S., were also found to be

discharging brine wastes containing mercury, although at

a lesser rate. During the 20-30 years these plants have been

operating, considerable mercury has obviously been dis-

charged to the environment. Recent work by U.S. investi-

gators has shown significant mercury concentrations in

bottom sediments in areas below the outfalls of discharg-

BARA erp eres

RESIN ERRE SES RE PUD a EMER RETRO IR A Te ON ee Le ee

Appendiz 1V 17a

ing plants. Values up to 430 ppm have been obtained by

investigators working on U.S. waters. According to Ontario

spokesmen, levels up to 1800 ppm of mercury were detected

in muds immediately below the outfall of one Sarnia plant.

Gradients are evident, concentrations dropping to back-

ground levels (generally ranging from less than the detect-

able limit to approximately 2 ppm) within a few miles of

the source of contamination. Mercury levels in water

generally have been below detectable levels (10 ppb), based

on current work in the St. Clair- Erie western basin

system.

While various investigations are far from complete at

the present time, the following pattern is evident.

1. Where there are chlor-alkali plants, there is good evi-

dence of mercury escapement to the environment.

The magnitude of the loss can be minimized by con-

trol procedures in the plant.

2. Sources of mercury pollution are being rapidly identi-

fied by U.S., state, and Canadian authorities and rigid

control procedures (with monitoring) are being made

mandatory. No known mercury losses to the environ-

ment are being tolerated.

3. While the ecology in a mercury polluted area is un-

doubtedly affected, the degree of contamination of

fish is related to the species, the size, the age, and

where the fish is caught. Feeding habits appear to be

involved.

Economic Assessment

Any assessment of the economic cost of the current

mercury pollution situation in the Great Lakes must be

both tentative and non-quantitative in nature. The actual

level of physical risk is not yet determined; political and

regulatory reaction has been variable from state to state

18a Appendiz IV

and is subject to continuing revision. The permanence of

the impact of this general publicity on the consuming public

is also difficult to determine at this point-in-time.

The problem developed just prior to the opening of the

commercial fishing season and caught the processing indus-

try with reduced inventories of lake perch and walleye.

A very early and informal survey of the industry reflects

that total fish sales from all sources in the Midwest have

been reduced about 15 percent since the mereury ban was

announced. Although Great Lakes species are re-entering

commercial channels, it is anticipated that Midwest sales of

lake perch could be reduced by 50 percent over the course of

the 1970 season.

The cost to society is very difficult to define and calculate.

The following kinds of cost are, in fact, being incurred and

their longer term extent can only be guessed.

1. Cost of added enforcement, regulation, inspection, and

control.

2. Promotional expense by processors, wholesalers, and

retailers disassociating ocean species from Great

Lakes species.

3. Cost of holding inventories pending decision.

4. Cost of subsidies (currently under consideration by

the state governments, for example) to compensate

businessmen hurt from either the commercial or

sport fish bans.

5. Loss of revenues to commercial] fishermen. Although

these businessmen are relatively few in number, the

loss to them as individuals is absolute and catastro-

phie.

6. Loss to processors and distributors of both Great

Lakes and marine fish due to reduced volume. This is

particularly significant to processors and distributors

= a a

Appendix 1V 19a

in the Midwest, since the ban coincides with high-

volume season.

7. Loss to producers of ocean fish products to the extent

that the total demand for all fish products is reduced

by adverse publicity to any single product.

8. Loss of revenues occurring from the sports fishery,

as well as lesser sportsman satisfaction.

9. Loss to the consuming public in that their range of

choice is effectively reduced by fear of a whole class

of food products.

In all these cases, the loss to each level and sector of the

economy has ‘‘multiplier’’ impact on many other sectors.

It is far too early to anticipate what the net, longer-term

economic and social consequence of the mercury pollution

problem will be.

Current BCF Work

One of the actions taken by the Bureau of Commercial

Fisheries (BCF), U.S.D.1., following the release of in-

formation suggesting the relative seriousness of this con-

tamination problem, was to initiate, on a cooperative basis

with other agencies, immediate and preliminary monitoring

of fish taken from the Great Lakes system for their mercury

content. This initial action was based largely on an evalua-

tion of Canadian information concerning concentrations of

mercury in fish caught in international waters, as well as on

information gained from the literature and public health re-

lated agencies. Initial BCF monitoring had as its objectives

an assessment of possible direct harm to commercial and

sport fishes of the affected areas, as well as of the indirect

adverse impact that would undoubtedly result to the com-

mercial fisheries from this contamination problem and

responses available to the commercial industry.The details

of this work and resulting data are being made available on

20a Appendiz 1V

an immediate basis to other agencies of the public sector,

recognizing the criteria of evaluation will perhaps differ.

To date, the Ann Arbor, Michigan, Technological Labora.

tory has been coordinating the BCF collection of appropri-

ate fish samples from the Great Lakes for mercury determi-

nations. Extensive samples have been collected and analyzed

from Lake St. Clair and the western basin of Lake Erie.

Additional samples are curretnly being examined from the

central and eastern basins of Lake Erie, from southern

Lake Huron and Saginaw Bay, and from the southeast

sector and Green Bay areas of Lake Michigan. Sampling

is also in progress for northern Lake Michigan, and Lakes

Superior and Ontario. Sampling is being performed gen-

erally by field staff of the BCF Great Lakes Fishery Labora.

tory, Ann Arbor, with assistance by field staff of the

Michigan Department of Natural Resources.

To the extent possible, approximately 15 individual fish

are taken randomly (by trained biologists) by on-site sampl-

ing from commercial fishing gear in the immediate area

of fishing. Data collected include species, date, location,

depth, method of harvest, length and weight (of individual

fish), and a seale sample (for subsequent age data). All fish

of one lot are separated into ‘‘marketable product”

(headed, dressed, sealed, tail-off) and ‘‘offal’’ (processing

waste). Edible and offal composites (after pooling) are

weighed for yield data, ground, and sub-sampled for an-

alysis.

Thus far, samples are being analyzed for total mercury

content using one or more of several analytical sources.

Most of the data have been obtained on samples shipped

to Wisconsin Alumni Research Foundation (WARP),

Madison, Wisconsin. WARF employs a dithizone extraction

of an acid digested sample coupled with atomic absorption

Appendiz IV Zia

using a boat technique. Some samples are also being ex-

amined on a cross-check basis by the Phoenix Memorial

Laboratory, The University of Michigan, Ann Arbor, em-

ploying a neutron activation method. Plans are being laid

to develop an in-house testing capacity at the earliest

possible time.

Recommendations

Corrective actions and future research by industry and

by state and federal agencies on mercury contamination

could take the following steps:

1. The first step, which has already been taken on an

emergency basis in the Great Lakes area, is to identify

all sources of mercury pollution to the environment

and to stop these losses. Extreme measures may be

necessary in some cases.

2. A next, very important step is to determine the fate

of mercury already in the environment. If, as Swedish

studies have indicated, elemental and inorganic mer-

eury discharged as wastes from plant outfalls can

serve as precursors to methyl-mercury through bio-

logical processes in the environment, then the com-

plex problem of removal may need to be considered.

Dredging may be a possibility, but if this is done,

the mercury must be deposited in a suitable location

to permanently avoid re-entry. Disturbance of the

bottom ecology with resulting consequences would be

one obvious drawback. Chemical complexing of the

mercury to prevent its methylation is another possi-

bility; this approach is currently being evaluated by

the Swedes. Any proposal will certainly require care-

ful study and the close cooperation of those involved.

3. A third important action wonld be to achieve a better

Appendix IV

understanding of the health hazard as related to the

ingestion of various types of mereury compounds and

the establishment of realistic food tolerances. Such

tolerances would not only better protect the consumer

(and indirectly the angler), but would also help pro.

tect enterprises dealing with this food commodity

from unwarranted seizures.

Consideration should be given to requiring the re-

cording of the sale, use, and loss of mercury, partie.

ularly for monitoring inventories and possible losses

to the environment. Communication of such informa-

tion through agencies of the public sector concerned

with public health and natural resources could create

awareness to problem areas before disasters occur.

Toxicological studies should be conducted on selected

fish species at all stages of their life history to de-

termine acute and sub-lethal effects of the mercury

pollutant. Also, studies of the food chain of these fish

should be conducted where there is evidence of a con-

centration effect through the food chain. A profile of

various mereury compounds would also be useful in

selected species of fishery organisms, to facilitate a

better understanding of changes evidenced by moni-

toring the environment.

Technical conferences should be held at appropriate

intervals involving scientists qualified in areas of

environmental concern. If held at the international

level, prompt dissemination of current research find-

ings could be insured. Coordination of programs is

essential. Information must flow freely and rapidly

among those concerned. Strong, non-partisan leader-

ship will be required to overcome interagency and

geographical hindrances.

TLS LY GI Ne ERS

pe ee ee PO DEY OPO LIRR,

Appendix IV 23a

(C) PORTIONS OF REPORT OF L. A. VAN DEN

BERG, FEDERAL WATER QUALITY

ADMINISTRATION, RELATING TO SOURCES

OF MERCURY IN LAKE ERIE (pp 662-664).

(Paragraph numbers deleted).

Because of mercury discharges, the State of Michigan

stopped the production of chlorine by Wyandotte Chemi-

cals Corporation until a treatment system was developed

and the mercury bearing wastes were removed from the

receiving waters.

In our latest data on the 22nd of May, there appeared

no discharge of mercury from that outfall.

The State of Ohio issued an order to the Detrex Chemical

Industries, Ine., Ashtabula, Ohio, on April 13, 1970, to

“~~. cease and desist the discharge of liquid industrial :

h

waste containing any mercurial compounds to waters of

the State.’’ Some operational changes were made but

data collected on May 11, 1970, indicate that Detrex still

discharged 1.2 pounds of mercury per day.

Allied Chemical Company, Buffalo Dye Division, Buffalo,

New York, is a source of mercury to the Buffalo River. On

May &, 1970, a sample of the plant effluent revealed 0.12

mg/l mereury. The company stated that the process utiliz-

ing mercury Was not in use on that day. Based on this in-

formation, Allied Chemical Company was discharging ap-

proximately 4 pounds of mereury per day from sources

other than the reported production of disulfo intermedi-

ates.

The discharge from Diamond Shamrock, Painesville,

Ohio, to the Grand River had a concentration of 0.010 mg/1

mereury on April 4, 1970.

The first statement (of a written report, not submitted

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24a Appendix IV

in full in the record, Ed. Note) has to be changed. Recently

received data revealed that concentrations of 0.002 mg/1

occurred at the Ann Arbor, Wayne County, Wyandotte and

Detroit sewage treatment plants. These were all on 24

hour composites on the 14th of May.

No measurable concentration of mercury was present

in sewage treatment plant effluents investigated in Mich.

igan (State data). Concentrations of 0.003 and 0.004 mg/1

mereury were present in Euclid and Cleveland Westerly

and Southerly sewage treatment plant effluents, respee-

tively. Although no measurable concentration of mercury

was present in the Cleveland Easterly sewage treatment

plant effluent, which receives wastes from several users of

mereury, 4 mg/kg were present in Lake Erie sediments

100 feet north of the discharge point.

On May 7, 1970, a concentration of 0.011 mg/1 mercury

was present in the outfall from the National Aeronautics

and Space Administration, Lewis Research Center, Cleve-

land, Ohio. This occurred during a period when there was

no discharge from lagoons that supposedly receive all

mercury wastes from known sources.

Investigations of additional potential dischargers of

mercury to Lake Erie are in progress by the State and the

Federal Water Quality Administration.

(D) REMARKS OF MR. STEIN RE MERCURY

TESTING AND OVERALL PROGRAM

(TRANSCRIPT, p. 717)

And let me make one last remark on this. We, and I

think I, particularly, have given thought to this mercury

problem, but they are talking about all toxic materials.

If we can’t do this on mereury which is a relatively easy

one, what are we going to do on the others? That’s why

aw

Appendix 1V 25a

I say I think we should look at this as kind of a pilot

operation in dealing with the whole area of control of toxic

materials and see if we can come up with a reasonable

program that we can live with and the States can live with

and the users of mercury can live with.