Reversing a lower court ruling, the U.S. Seventh Circuit Court of Appeals last week ruled Flambeau Mining Co. was in compliance with a Section 402 permit approved by the state of Wisconsin even though it did not hold a separate permit for copper discharges that reached navigable waters, according to the National Mining Association (NMA). The court ruled that Flambeau mine, nevertheless, was entitled to a “permit shield” under the Clean Water Act (CWA), in Wisconsin Resources Protection Council v. Flambeau Mining Co., because it took reasonable steps to verify that its discharges were covered by the state mining permit.
The environmental plaintiffs won the lower court ruling that held the mine violated the CWA despite the court’s extraordinary recognition of the company’s exemplary efforts to comply with the law and the “de minimis” effect its discharges had on water quality. The lower court also exempted the company from paying the plaintiff’s legal fees citing its doubts about “why [plaintiffs] would have expended so much time and energy litigating against a company that seems every bit as committed as they are to the protection of the environmental preservation of water quality.”
The appeals court dismissed the absence of a state discharge permit as a technical matter after noting the state’s explicit decision—and the implicit agreement by the Environmental Protection Agency—to waive the need for a separate discharge permit because storm water effluent was more strictly regulated under the mining permit. To hold the company responsible for a permit that regulators decided was unnecessary is “inconsistent with due process,” said the appeals court.
