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- 12/10/98 THU 18:13 F.4S • • Iaj003 well above the applicable standard of 250. In addition, the nearest surface water monitoring point, RS-2, located downstream from the seep and pit inflow areas, has reported a notable increase in manganese levels. ~In a November, 1998 Report submitted by BMRI to the DMG, the company acknowledged that~significant differences in water quality before, during, and after mining has occurred. For bxample, the pre- mising manganese level averaged 0.041 mg/1. During mining it averaged 0.02 mg/I. However, the post-mining level has averaged 0.160, with a high of 0.426 mgll. An even ljigher reading, at 0.611 mg/1 was discounted in the averaging when BMRI labeled it as a "data outlier." Remember that the applicable manganese standazd is 0.05 mg/I for the Rito Seco. These numbers aze contained in Table e1-2 to the BMRI Report which is attached to this letter. At a minimum, these results raise serious questions about the Mine's di harges into the Rito Seco. While BMRI has apparently undertaken emergency measures to mi 'miZe the seepage, it is highly unlikely that all seepage from the West Pit into the Rito Seco has been or can be prevented. In documents recently submitted to the DMG, BMRI acknowledges ghat water is flowing from the West Pit into the Rito Seco rechazge alluvium. The DMG is c~rrently investigating the likelihood that Mined Land Board permit violations have occurred due to the elevated levels of TDS, at a minimum. I have sent you under separate cover a c~py of a letter to Mike Long, DMG Director, regarding these issues. As you know, seepage from the West Pit that reaches the Rito Seco Cree is considered a point source discharge under the law. Federal courts have definitively Wiled tha the seepage from amining-related pit is a point source. "Gravity flow, resulting in a discharge int a navigable body of water, m~~a be part of a point sowce_ dischazge if the miner at least initially co leered or channeledthe water and other materials: 'Sierra Club v. Abston Construction, 6 0 F.2d 41, 45 (5`'' Cir. 1980). See also, United States v. Earth Sciences. Inc., 599 F.2d 368, 370 (1 '" Cir. 1979)(system of mining sump pumps, ditches, and hoses is a point sowce, notint that point sowce must be interpreted "broadly" to effectuate the remedial purposes of the C WA)'; Consolidated Coal Co. v. Costle, 604 F.2d 239, 249 (4`s Cir. 1979)(point sources include mini g s}urry ponds, drainage ponds, and refuse piles); Trustees for Alaska v. EPA, 749 F.2d 549, 55 -58 (9 Cir. 1984)(adopting Earth Sciences' broad interpretation of point source); Contmltte to Save Mokelumne River v. East Bay Util., 13 F.3d 305, 308 (9'" Cir. 1993)(holding an NPDES permit is required for "surface runoff that is collected or channeled"). As noted by EPA Region VIII, "any seeps coming from identifiable sour es of pollution (i.e., mine workings, land application sites, ponds, pits, etc.,) would need to be r~gulated by dischazge permiu." better from Max Dodson. Dtrector, Region VIII Water Man ement Division to Dan Fraser, Chief, Montana Water Quality Bweau, Re: NPDES Permit Issues d Rock Mines, dated Dec. 22, 1993. In a recent case challenging the lack of an NPDES it for a mining operation, a federal court, after a detailed review of the Clean Water Act' relationship to mining activities, found that: ~ Interestingly, the Earth Sciences case otiginsted on the Rito Seco Creek very near to the current dispute. Earth Sciences was a pre%ious mining company that had experienced water quality problems at the site.