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OHA Announces Intention to File Citizen Lawsuit under Clean Water Act

On June 14, 2013, the Okanogan Highlands Alliance (OHA) notified Crown Resources/Kinross Gold that a citizen lawsuit in Federal District Court may be filed in 60 days, charging the companies with violations of their National Pollution Discharge Elimination System (NPDES) permit and the Clean Water Act (CWA), unless all violations are stopped.

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
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

“OHA has tracked the water monitoring data from the mine as well as the on-the-ground conditions and made constructive suggestions to address the issues and concerns,” states David Kliegman, Executive Director of OHA. “If the regulatory agencies will not take adequate enforcement action, then citizens must take legal action to protect the water quality from degradation by mining activities.”

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[1], 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.

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. OHA alleges that Kinross has been in violation of its NPDES permit almost since the mine began operating, for more than 2,191 days. Citizen suits can bring penalties of up to $37,500 per day per violation.

“Crown’s appeal has been a waste of time, money and energy that would have been better spent addressing the water quality issues at the Buckhorn Mine,” Kliegman continues. “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 from escaping capture and treatment.”

While Crown is allowed to discharge treated mine water at designated locations if contaminant levels meet water quality standards, the levels of contaminants outside the Buckhorn Mine’s capture zone indicate that pollution is escaping from the mine. Crown has been slow to respond to the fact that contaminants are escaping.

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
As the Buckhorn Mine approaches the end of its predicted production, OHA seeks increased action to reduce contaminant flow from the mine and to strengthen the long-term protection of local ground and surface water.

OHA is a non-profit organization dedicated to educating the public about watershed issues and threats to the environment.

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