7th Circuit Throws Out|Mining Pollution Claims

(CN) - A Wisconsin mining company accused of discharging pollutants without a permit is protected by a provision of the Clean Water Act, the 7th Circuit ruled.

The Wisconsin Resources Protection Council had teamed with Laura Gauger and the Center for Biological Diversity to sue the Flambeau Mining Co. in 2011.

Flambeau operated a mine in the mid-1990s in Ladysmith, Wis., along the Flambeau River. Its operations and storm water discharged were regulated by a permit issued by the Wisconsin Department of Natural Resources.

In their lawsuit, the plaintiffs accused Flameau of discharging copper into the water without a permit. Flambeau argued that it was protected by the permit shield provision of the Clean Water Act, which allows the discharge of pollutants under a national pollution discharge elimination system permit.

A federal judge ultimately ruled against Flambeau after a bench trial, finding that the mining permit at issue was not issued pursuant to the Clean Water Act.

The court nevertheless called the amounts of copper "de minimis" and found that Flambeau's environmental protection efforts deserved "commendation, not penalties."

A three-judge panel of the Chicago-based 7th Circuit reversed Thursday, ruling that the mining company was, in fact, covered by the permit shield.

"Flambeau did not have notice that its permit might not be a valid WPDES permit or that it needed a permit other than the one the WDNR determined was required," Judge Kenneth Ripple wrote for the panel, abbreviating Wisconsin Pollutant Discharge Elimination System and Wisconsin Department of Natural Resources.

"Under these circumstances, where the permitting authority issues a facially valid NPDES permit and the permit holder lacks notice of the permit's [potential] invalidity, we hold that the permit shield applies," he added.

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