June 25, 2021

Gold-Mining Companies Fail To Persuade Court That Washington Attorney General’s Clean Water Act Jurisdiction Is Limited

Lori Kalani, Bernard Nash

Cozen O'Connor

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Cozen O'Connor

Washington AG Bob Ferguson obtained a summary judgment from the United States District Court for the Eastern District of Washington against gold-mining companies Crown Resources Corporation and Kinross Gold U.S.A., Inc. (collectively “Mining Companies”) dismissing some of the Mining Companies’ defenses to allegations that they are responsible for years of water pollution from the Buckhorn Mountain gold mine in violation of the Clean Water Act.
The complaint alleged that the Mining Companies operated an underground gold mine where extraction operations were primarily done below the water table and from which illegal levels of contaminants and pollutants were released into creeks that flowed into the Kettle River. The mine allegedly released toxic chemicals like aluminum, ammonia, arsenic, lead, and nitrates, that are harmful to people, water ecosystems, and fish species like trout. The water quality permit for the Buckhorn Mountain gold mine requires the Mining Companies to capture and treat water impacted by the mine’s operations.
In its decision, the court dismissed two of the Mining Companies’ defenses, which asserted that the AG’s claims under the Clean Water Act that the companies violated the conditions of their water discharge permit were barred because there had been no discharge of a pollutant from a point source to navigable waters, nor an addition of a pollutant, as required to establish jurisdiction under the Clean Water Act. The court found no support for the Mining Companies’ assertion on the limited establishment of jurisdiction under the Clean Water Act. The case will now focus on how much the Mining Companies owe for their Clean Water Act violations.

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