A U.S. magistrate judge has ruled the We Energies deal with the Environmental Protection Agency for remediation of the former Solvay Coke site in Milwaukee may have wasted money Cliffs Mining Co. spent on an earlier investigation, allowing the Ohio-based company’s lawsuit against the utility to continue.
"It’s important to note that the Court’s decision was not about the merits of the case and we look forward to presenting the facts as the case proceeds," We Energies spokesman Brian Manthey said in an email "We are quite confident the actions we are taking to remediate the Solvay site are reasonable and appropriate."
We Energies along with East Greenfield Investors LLC, American Natural Resources Co., Cliffs Mining Co. and Maxus Energy Corp. were all deemed as potentially responsible parties for environmental contamination at the 46-acre site at 311 E. Greenfield Ave.
Cliffs owned the property until 2003 when it was sold to an investor group with ambitious development plans for the site. The plans never materialized and the group ultimately filed for bankruptcy. Wisconsin Gas LLC, a WEC Energy Group or We Energies subsidiary, purchased the property out of bankruptcy last year.
We Energies reached an agreement with the EPA in 2017 for an engineering evaluation and cost analysis to create a plan to clean up certain contaminated soil on the site.
The responsible parties group had previously reached an agreement in 2007 with the EPA that called for a remedial investigation and feasibility analysis for the site. The remedial investigation was completed in 2016 and the parties were preparing the feasibility study, but the EPA is setting that work aside while We Energies completes its process.
Cliffs Mining sued We Energies in April, alleging the company had broken the 2007 agreement by entering into a deal of its own. Cliffs claimed the new approach would cost $20 million more and that We Energies was pursuing it to quickly redevelop the site.
Plans had not been announced at the time the lawsuit was filed, but Komatsu Mining Corp. has since said it will build a $285 million headquarters on the property. We Energies officials have said they do not believe the lawsuit will interfere with the development.
Cliffs argued that setting aside the work done under the 2007 agreement meant the money it spent on the remedial report could be wasted.
We Energies moved to have the case dismissed, arguing Cliffs did not have standing to bring the case, had not made a viable claim and that it had not broken its 2007 agreement.
U.S. Magistrate Judge William Duffin ruled this week that Cliffs had demonstrated it is plausible its money has been wasted because of We Energies actions, allowing the case to move forward. Duffin denied We Energies' argument that Cliffs failed to make a claim. He did dismiss a declaratory judgment claim from Cliffs, finding it duplicated the breach of contract claim in the case.
A hearing to discuss the path forward for the case is set for Dec. 14.