Victory!! Appellate Victory Solidifies Flambeau Mining Company's Exemplary Environmental Record
DeWitt Ross & Stevens S.C. secured a complete appellate victory for Flambeau Mining Company in a decision issued by the United States Court of Appeals for the Seventh Circuit (Seventh Circuit) on August 15, 2013. At issue in the appeal was whether the trial court in the Western District of Wisconsin erred in determining that Flambeau Mining Company had violated the Clean Water Act (CWA) by discharging storm water containing de minimis amounts of copper from its reclaimed mine site without the proper permit. In reversing the trial court, the decision makes clear that Flambeau Mining Company was in compliance with the CWA at all times.
Following closure of active mining at the Flambeau Mine site, the Wisconsin Department of Natural Resources (WDNR) elected to regulate Flambeau Mining Company’s storm water discharges at the site pursuant to its mining permit. WDNR relied on a specific provision in the Wisconsin Administrative Code allowing it to regulate the site’s storm water pursuant to the Mining Permit, rather than pursuant to a separate Wisconsin Pollution Discharge Elimination Permit (WPDES) permit. It was undisputed that Flambeau Mining Company relied upon and complied with the storm water discharge conditions of the Mining Permit since issued by WDNR in 1998. Despite that, plaintiffs filed a citizen suit alleging that the company’s mining permit was not a WPDES permit issued pursuant to the Clean Water Act, and therefore, any storm water discharges were illegal.
Though the trial court ultimately concluded that Flambeau Mining Company’s environmental efforts at the mine site were “exemplary” and that those efforts deserved “commendation, not penalties,” the trial court held that the Mining Permit was not a valid WPDES permit, and because the CWA is a strict liability statute, imposed a proforma penalty of $25.00 for each of the eleven discharges. The trial court also denied Plaintiffs their attorneys’ fees. Flambeau Mining Company appealed from the decision of liability, and Plaintiffs appealed the denial of their attorneys’ fees request.
On appeal, Flambeau Mining Company argued that its Mining Permit was properly issued by WDNR, the only entity with authority to issue CWA storm water permits in Wisconsin, that Flambeau Mining Company reasonably relied upon the permit it was issued, that it was in compliance with that permit, and that Plaintiffs’ lawsuit was barred by the Clean Water Act’s permit shield provisions. Plaintiffs argued that the Administrative Code relied upon by WDNR to regulate storm water discharges with the mining permit had not been properly approved by the EPA, that the Mining Permit was not a permit issued pursuant to the Clean Water Act, and the permit shield did not apply accordingly.
The Seventh Circuit reversed the trial court decision, determined that Flambeau Mining Company was entitled to the permit shield defense, and therefore had not violated the CWA. In summary, the Seventh Circuit concluded that Flambeau Mining Company had been told by the WDNR that its mining permit constituted a valid WPDES permit, that Flambeau Mining Company had no notice that any provision of the state law upon which WDNR relied to issue the permit was invalid, and that Flambeau Mining Company was at all times in compliance with the mining permit as issued. The Seventh Circuit determined that denying a regulated entity the permit shield under these circumstances would be “inconsistent with the requirements of due process” and would “vitiate the permit shield” altogether. The Seventh Circuit emphasized that the permit shield is intended to provide permit holders certainty and finality by ensuring that compliant CWA permit holders will not face enforcement actions. Here, the enforcement action attempt was made more than a decade after the permit in question was issued. The Seventh Circuit also denied plaintiffs’ cross-appeal relating to attorneys’ fees holding that since the plaintiffs were not prevailing parties, they were not entitled to fees.
The decision is a victory for Flambeau Mining Company and its exemplary environmental record.