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OHA to file Citizen Lawsuit Under Clean Water Act

On June 14, 2013, the Okanogan Highlands Alliance (OHA) sent a letter to Crown Resources/Kinross Gold informing them that unless they “clean up their act,” a citizen lawsuit may be filed in Federal District Court, charging them with violations of their National Pollution Discharge Elimination System (NPDES) permit and the Clean Water Act (CWA). Citizen suits can bring penalties of up to $37,500 per day, per violation. OHA contends that Kinross has been in violation of its NPDES permit since shortly after the mine began operating, which is 2,191 days up until June 1, 2013.

After more than five years of gold production at the Buckhorn Mine, the violations of the NPDES and the CWA are well documented in monthly water quality monitoring data. The mine has:
1) Failed to establish and maintain the groundwater capture zone [i]
2) Discharged pollutants in excess of water quality limitations
3) Discharged pollutants without permit authority
4) Failed to comply with the Adaptive Management Plan (AMP) for Water Quality

 [i]  A groundwater capture zone is the area in which any mine-related contaminants are captured by mine water management, rather than being released to the environment without treatment.

The mine permit requires Crown Resources/Kinross Gold to implement an Adaptive Management Plan for Water Quality to ensure that actions will be taken if problems arise during mine operations. The plans include an early warning system to identify problems. If monitoring shows that mine contaminants exceed background values outside the capture zone , the mining company is required to: inform the Washington State Department of Ecology (Ecology), identify how far contaminants have traveled, and make a plan to stop their spread. The mining company has failed to honor this permit requirement. Instead, since early 2010, even though the company’s own data show values that are consistently above background values, their required monthly reports to Ecology state that no exceedences have occurred. This reporting fails to acknowledge their own data in locations where values have consistently exceeded background values.

It is permissible for treated mine water that meets water quality standards to be discharged at designated locations; however, the Buckhorn Mine is supposed to have zero discharge outside of the mine’s capture zone. Levels of contaminants outside the mine’s capture zone indicate that pollution is escaping. Crown has been slow to respond.

In April 2009, Crown Resources was issued a penalty of $40,000 by Ecology for failure to establish and maintain the capture zone, as well as AMP requirements related to capture zone failures. In July 2012 Ecology issued the largest penalty in WA State history to the mining company ($395,000), for well-documented water quality and permit violations in 2011 and 2012, which the company subsequently appealed.

In OHA’s opinion, Crown’s appeal has not been a productive use of time, money and energy that would have been better spent addressing the water quality issues at the Buckhorn Mine. Kinross has the resources to fulfill its commitments to control the spread of pollutants. If a solution to the water quality issues at the mine is going to be found, the company must acknowledge the problems. There is no excuse for their failure to prevent contaminants escaping capture and treatment, or for their consistent denial of responsibility. Any increases in mine contaminants outside the capture zone, even those that do not violate the numeric water quality standard, should be addressed.

As the Buckhorn Mine approaches the end of its predicted production, OHA seeks increased action to reduce contaminant flow from the mine. The long-term protection of local ground and surface water must ensure that the water emanating from Buckhorn Mountain is not left contaminated when Kinross is done.

In this photo, mining company consultants are recording water quality monitoring data at the headwaters of Bolster Creek, where surface water has shown exceedences over baseline almost since mining began, based on the company’s own data. The mining company failed to report the exceedences above baseline and failed to take appropriate action
Bolster Creek Headwaters - SW-14
Above: This ecologically important wetland area is located in the headwaters of South Fork Bolster Creek, near the monitoring point where ongoing elevated concentrations of mine-related pollutants have been found in surface water, indicating a failed capture zone.

Since 2008, OHA has tracked the water quality monitoring data from the mine as well as on-the-ground conditions, and made constructive suggestions to address issues and concerns with the mine. If the regulatory agencies will not take adequate enforcement action, it is necessary for citizens to take legal action to protect the water from being degraded.

For more information, please refer to the Summer 2013 Buckhorn Bulletin

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