Posted on July 26, 2012 by Nels Linde
A federal court ruled Tuesday that Flambeau Mining Company (FMC) violated the Clean Water Act on numerous occasions by allowing pollution from its Flambeau Mine site, near Ladysmith, Wis., to enter the Flambeau River and a nearby tributary known as Stream C.
The lawsuit was filed early last year by the Wisconsin Resources Protection Council (WRPC), the Center for Biological Diversity, and Laura Gauger. The complaint charged that Flambeau Mining Company (a subsidiary of Kennecott Minerals Company / Rio Tinto) was violating the Clean Water Act by discharging storm water runoff containing pollutants, including toxic metals like copper and zinc, from a detention basin known as a biofilter.
Flambeau Mine in September 1994, when heavy rains caused flooding at the mine site.
The federal Clean Water Act makes it unlawful to discharge pollutants from a point source to waters of the United States without a permit issued under the National Pollutant Discharge Elimination System (“NPDES”). Both the U.S. EPA and the DNR (which has been delegated authority to issue NPDES permits in Wisconsin under its parallel program, the WPDES) commonly issue permits to point-source discharges of industrial stormwater such as the discharge from FMC’s biofilter. The most important function of an NPDES permit is to ensure that all applicable water quality standards are maintained. FMC never had an NPDES permit authorizing the discharge of copper, zinc, iron, and other pollutants from the biofilter to Stream C, and therefore was in violation of the Clean Water Act.
The Clean Water Act contains a “citizen suit” provision that authorizes citizens and organizations to file a federal lawsuit against polluters alleged to be (a) discharging pollution without an NPDES permit, or (b) violating the terms and limitations of an existing NPDES permit. The complaint filed by WRPC, CBD and Gauger alleged that FMC was in violation of the Clean Water Act’s prohibition on the discharge of pollutants without an NPDES permit, and the Court agreed.
As long-time mining opponent Roscoe Churchill of Ladysmith, Wisconsin said in 2002, “Maybe I won’t live long enough to see the pollution. But I’ve studied enough mines to know that it’s not a matter of if, it’s a matter of when. It’s a kettle of poison and eventually it’s going to find its way into the Flambeau.” Mr. Churchill, who spearheaded local efforts to stop construction of the Flambeau Mine in the 1990s, passed away in 2007.
Commenting on the long history of legal action with Wisconsin State courts and regulators surrounding this mine, plaintiff Laura Gauger
said in her press release:
“I am not Native and cannot speak for the tribes. But I agree with what I was told by a tribal elder: ‘The land and our children are the issue. Our lands and waters are being desecrated by the mining companies. What’s left for the children after those companies are gone?’ That’s why there was no choice but to keep fighting and take this case to federal court.”
The Wisconsin Resources Protection Council (WRPC) is a statewide, nonprofit membership organization concerned with the environmental impacts of metallic mining
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