For Immediate Release

October 8, 2020

Contact: Sarah Kliegman, co-Executive Director, Okanogan Highlands Alliance (OHA), 509-560-4429

Spokane, WA  – On October 5, 2020, Judge Rosanna Maloof Peterson (Federal District Court, Spokane) denied Crown/Kinross’ motion to dismiss allegations brought against them earlier this year by Okanogan Highlands Alliance (OHA) and Washington State in a Clean Water Act citizen suit.

OHA and the State have alleged over 2,600 violations against Crown/Kinross in the citizen suit because of contaminated water emanating from the Buckhorn Mine near Chesaw, WA and other issues. The companies moved to dismiss a fraction of the allegations against them by asserting that these violations are “wholly past.” They also moved to dismiss allegations brought by the State under the Washington Water Pollution Control Act.

Judge Peterson heard oral arguments via teleconference on September 24, 2020 and filed her ruling on October 5. In her decision, she agreed with OHA and the State’s arguments that, considering the pattern of consistent and egregious noncompliance exhibited by Crown/Kinross, it is too early and there is not enough evidence to dismiss violations as “wholly past.”

“OHA is glad that the court rejected Crown/Kinross’ motion to dismiss,” states Sarah Kliegman, co-Executive Director, OHA. “We look forward to moving forward with the case and stopping the continuous illegal discharge of pollution from the Buckhorn Mine that threatens the waters and ecosystems that make the Highlands so special.” 

The Buckhorn Mountain Mine is located in the rural, semi-arid part of north central Washington State where water is an especially precious resource. Farmers, ranchers, hunters, anglers, and retirees in the surrounding area depend on limited water resources for their livelihood and other activities.

Kelly Wood, appearing in court on behalf of the State, and Paul Kampmeier, appearing on behalf of OHA, argued under the rules that the allegations should stand because the claims were sufficiently stated and made in good faith. 

In her ruling, Judge Peterson affirmed that OHA and the State sufficiently stated their claims, that allegations were based on good-faith beliefs ‘formed after reasonabl[e] inquiry’ that are ‘well-grounded in fact,’ as required by the statute, and that the court has jurisdiction in the case. She also ruled that the Attorney General has the authority to bring the allegations under the Washington Water Pollution Control Act. 

Judge Peterson explained that while Crown/Kinross “challenge the ongoing nature of a certain subset of violations, namely trigger level exceedances and the dismantling of a water treatment plant at the Mine, [they] have yet to show that those wrongs, as well as the other violations alleged by [OHA and the State], have been completely eradicated at the Mine, so as to render the case moot at this juncture.”

OHA is a public interest organization in the Okanogan Highlands of north-central Washington State. OHA has been involved at the Buckhorn Mine through the environmental review and permitting processes, continually advocating for environmental protection of this region of Washington State.

###

For immediate release:

Okanogan Highlands Alliance and Washington State Attorney General File Clean Water Act Lawsuits Against Mining Companies for Pollution from Mining Activities

Contact: Sarah Kliegman, Co-Executive director, 509-560-4429, sarah@okanoganhighlands.org

May 7, 2020
Spokane, WA – Okanogan Highlands Alliance (OHA) and the Washington State Attorney General’s Office have both filed lawsuits in U.S. District Court against Crown Resources Corporation and Kinross Gold U.S.A., Inc. for water pollution violations at the Buckhorn Mine located near Chesaw, WA in north-central Washington State. The suits are related to the consistent and ongoing discharges of pollutants at the site above the levels allowed by the company’s National Pollutant Discharge Elimination System (NPDES) permit.

“Our community will not stand for the pollution of our waters,” states OHA’s co-Executive Director, Sarah Kliegman, PhD. “The mine has not taken sufficient actions to either investigate the fate of pollutants at the site or to clean up the pollution. This lawsuit is intended to impel the company to clean up their mess.”

Buckhorn Mountain with Field's Pond in the foreground
Buckhorn Mountain, with Field’s Pond and Nootka rose in the foreground

OHA filed a citizen suit under the Clean Water Act because of the consistent and ongoing violations at the Buckhorn Mine. OHA is represented by Paul Kampmeier of Kampmeier & Knutsen, PLLC. Kampmeier said, “Mine operators must be accountable for the pollution they create. They cannot be allowed to pollute state waters with impunity or to leave a legacy of water pollution after mining activities have ceased.”

OHA and the State’s filing allege that Crown/Kinross violated the Clean Water Act by failing to contain pollutants to the immediate mine area known as the capture zone and that the mine has been discharging more pollutants than permitted for the past five years. The lawsuits also contend that Crown/Kinross failed to submit reports required when certain pollutants have exceeded trigger levels as well as various plans and notifications required by the permit.

The Buckhorn Mine operated in the Okanogan Highlands of north-central Washington State from 2008-2017. There have been ongoing discharges of pollutants from the mine site since mining began. While the Washington State Department of Ecology has issued violations and penalties over the years, Crown/Kinross have not taken the actions necessary to contain their pollution within the capture zone.

The most recent NPDES permit that regulates the Buckhorn Mine was issued in 2014; it has been administratively extended, and is still in force. The permit requires that the water near the mine be returned to near-baseline conditions. These requirements have been upheld by the Washington State Pollution Control Hearings Board, Ferry County Superior Court, and the Washington State Court of Appeals.

OHA is a public interest organization in the Okanogan Highlands of north-central Washington State. OHA has been involved at the Buckhorn Mine through the environmental review and permitting processes. OHA has analyzed the monitoring data since the mine was built in 2008, continually advocating for environmental protection.

According to the mine’s original Adaptive Management Plan (AMP), the water quality problems at the mine should trigger specific actions. The steps are clearly outlined, requiring the company to: notify Ecology, identify the source of the contaminants and the extent of the plume, and develop a plan to remediate the problem. Over the years, various levels of investigation have provided useful data to help in the search for the contaminant flow path. Likely culprits have been identified, such as surface water from mine facilities, development rock stockpiles, and the underground mine workings. Collecting monitoring data in the appropriate locations, such as below the development rock stockpile, is critical to understanding the source of the water quality problems.

Phases of Adaptive Management

Adaptive Management details include an action threshold and indicate who would take what action. The specific plans have three phases:

  • Phase I (early action) based on 50% of predicted impact: Kinross would review data and determine the likelihood predicted impacts would be exceeded. If they think there would be a potential for greater impacts they would inform the agency in their annual report. Take voluntary action and continue monitoring. The agency would take no action.
  • Phase II (planning) based on 80% of predicted impact: If Kinross decides monitoring suggests impacts would exceed predictions, they would then develop a Contingency Plan. The agency would meet with Kinross and develop a plan.
  • Phase III based on 100% of predicted impact: Kinross would implement Contingency Plan. The agency would oversee contingency actions.

Below are examples from the Adaptive Management Plan, stating what actions will be taken if water quality data show parameters exceeding background values. Although levels have exceeded background since mining began, these adaptive management steps have not been followed.

AMP excerpt regarding water quality exceeding background levels (click to enlarge)
AMP excerpt regarding the capture zone (click to enlarge)
Ongoing AMP Issues
Kettle River Tailings Facility

There was a trend of increasing concentrations of nitrate, sulfate, and TDS in surface water; this should require Adaptive Management Plan action.

Issues with the Supplemental Environmental Impact Statement AMP

One of the major flaws in Ecology’s Supplemental Environmental Impact Statement (SEIS) was its reliance on adaptive management or more accurately a plan that is titled adaptive management but in reality has poor mechanism to adapt to changing situations. It would be more accurately be characterized as a monitoring plan. Adaptive management should be an active systematic process for continually improving management policies and practices by sequential learning from the outcomes of operational programs. It should be designed to experimentally compare selective policies or practices by evaluating alternative hypotheses. Ecology and Kinross want to redefine adaptive management and use it as a basis for the entire mine plan.

To put this plan in perspective, Ecology relied on this adaptive management plan for most aspects of the mine proposal including:

  • Dewatering impacts to seeps and springs
  • Dewatering and water supply impacts to steamflow
  • Fine sediment deposition and water quality changes to Marias Creek from the mine access road
  • Aquatic habitat improvements to mitigate for streamflow impacts from mine dewatering
  • Development rock management
  • Water treatment plant operations
  • Upland habitat protection, enhancement and management
  • Wildlife management along haul road
  • Kettle river tailings impoundment

The AMP was relied on to evaluate the monitoring data and compare it to what is predicted in the SEIS and to evaluate compliance to the requirements of various permits including:

  • The NPDES for the collection, treatment and discharge of mine water,
  • The water rights for the use of surface water and ground water supply and mitigation,
  • The construction and operational stormwater,
  • The hydraulic permit approval for the construction and maintenance new culverts and stream restoration,
  • The permits on National Forest Land,
  • The waste discharge and Dam Safety for the tailings impoundment
Background

Water Rights were historically OHA’s main vehicle for protecting surface water. Ecology took the position that since Washington State Water Law requires that water be put to beneficial use in order to get a water right, that if water is not being put to beneficial use, a water right is not required. This absurd interpretation of water law created a loophole that allowed Kinross to dewater Buckhorn Mountain and dump the water.

OHA’s Initial Concerns in the Mine’s Planning:

The dewatering of Buckhorn Mountain would be the most damaging aspects of the proposed mine. Ecology approved for Kinross to extract all the water from Buckhorn Mountain’s heart of gold. In order to mine, people, fish, and wildlife would be deprived of clean water. In some creeks, clean water would be replaced with treated water that is supposed to meet minimum standards. In other creeks, no replacement is planned. Mine shafts would change the way water flows from Buckhorn Mountain, affecting people dependent on that water. It would take 15-40 years to refill the aquifer inside Buckhorn Mountain. During that time, the creeks, springs, and seeps critical for healthy fish and wildlife would be deprived of water.

Water Rights for the Buckhorn Mine proposal approved by Ecology:
  • G4-34904 (Mine Dewatering). This application approved November 21, 2007 for mining, industrial and flow augmentation for a maximum instantaneous beneficial use of 100 gpm with a total proposed annual withdrawal of 12.6 acre-feet per year, derived from groundwater associated with mine dewatering and operations. This water would be collected from sumps within the mine and from dewatering wells.
  • G4-34905 (Domestic). This application approved October 25, 2007 for dust control, mining, and domestic use for site employees from a single well for a groundwater withdrawal  with a proposed of 5 gpm and 5.2 acre-ft/yr.
  • S4-34999 (Storm Water). This application approved October 24, 2007 for a surface water diversion for industrial and mining use to augment mine operational needs not met by the quantities requested under Application No. G4-34905, for 50 gallons per minute (gpm) (0.111 cfs). This water would come from collection of storm water drainage from ore and development rock stockpiles.
  • R4-35093 (Reservoir). This application approved October 24, 2007 permits a storage facility (surge pond) for water derived from mine dewatering and storm water.
  • CG-CCV1-4P200 (Newman). This change application, approved on September 26, 2006, changes the purpose, place, and time of use of a certificated seasonal irrigation water right for two groundwater wells to use in year-round dust control and seasonal mitigation of mining impacts on stream flows. The total certificated quantities for this right are 300 gpm and 200 acre-ft/yr.
  • G4-35084 (Lost Creek Ranch). This application approved November 21, 2007 for instream flow mitigation for a maximum of 125 gpm from one well in the Myers Creek watershed.
  • CS4-ADJ47P45 (Leslie Trust). This change application approved October 19, 2007 changes an existing water right from agricultural use to instream flow mitigation use during mining and during recovery of water levels associated with cessation of mine dewatering. for up to 0.156 cfs and 29.9 acre-ft/yr. Use would revert back to agricultural at the end of mitigation.
  • CS4-ADJ47P36 (Thorp Trust). This change application approved October 19, 2007 is a permanent change in use from stock watering to instream flow mitigation for 3 gpm.
  • CG3-29653P (K2 Mining). This change application, approved on September 28, 2006, changes the place of use from the K2 Mine to the proposed backfill borrow site in Ferry County. The total permitted quantities for this Water Right Permit are 50 gpm and 80 acre-ft/yr.
Problems with the water rights Ecology issued:
  • There is an unreasonable level of uncertainty regarding the hydrogeologic modeling of the impacts of mine dewatering and the resulting streamflow depletion.
  • Baseflow calculations of streamflows are questionable.
  • Aquifer properties where stream flow reductions would take place are scarce. The modeling inputs are based on untested assumptions of aquifer behavior.
  • Ecology fails to consider the cumulative impacts of granting Kinross water rights on local water supply and downstream water resources.
  • Granting water rights to Kinross would be inconsistent with past actions by Ecology.
  • The mitigation offered by Kinross does not come close to offsetting the harm to senior water right users and the public interest.
  • The speculative nature of the mitigation proposed does not meet the requirements that new water rights not impair existing rights and that new rights not be detrimental to the public welfare.
  • The mitigation offered by Kinross is off-site and out-of-kind, primarily enhancement of downstream wetlands and streams instead of a long-term commitment to on-site restoration.
  • No reliable mitigation is being offered for stream depletion during the post-mining refilling of the Buckhorn aquifer.
  • There is too much uncertainty that the mitigation plan would adequately protect existing rights and instream flows from harm.

Below are details of the agreement from the April 2008 negotiations between OHA and Crown/Kinross, whereby an underground mine would proceed on Buckhorn Mountain with additional monitoring and stream augmentation.

Key Monitoring Provisions:

  • Crown/Kinross will hire an independent third party to do their monitoring and reporting.
  • Crown will provide funds for OHA to hire its own independent monitoring company to do annual audits, quarterly visits, and random sampling and testing to analyze Crown’s third-party work.
  • Crown will increase water quality monitoring on the west slope of Buckhorn Mountain.
  • Crown will increase monitoring for sediment during spring runoff.
  • Crown will lower the threshold for corrective action if sedimentation increases in Marias Creek.
  • Crown will collect baseline water quality and quantity data for residents’ wells that are reasonably close to the mine if residents have concerns. 
  • Crown will send OHA all monitoring data.
  • OHA will be permitted access to the mine site.
  • Crown and OHA will attend an annual meeting to discuss monitoring results.

Key Mitigation Provisions:

  • As long as they are operating the dewatering wells, Crown will run water over to the headwaters of Gold and Bolster creeks to maintain seasonal baseflow.
  • After closure of the mine Crown, will retire 25 acres of the Lost Creek Ranch irrigation water (15 acres more than the agencies required). This would add water to Myers Creek and Bolster alluvial fan groundwater to replace the predicted permanent reduction caused by mining.
  • Crown agreed to permanent conservation easements of their mitigation sites including the reclaimed mine site and opening them for public access.  
  • Crown will also fund a significant amount of additional mitigation sites throughout the area. 
  • Crown will fix problems with residents’ wells that are caused by mining activity.
  • Crown will make a good faith effort to minimize truck hauling on weekends.

Pacific Groundwater Group created a 3D visualization video for OHA as part of and in support of OHA’s comments on the draft NPDES Permit renewal in 2013. It begins with a visualization of the Buckhorn Mine underground workings with relevant faults and monitoring wells. It transitions to show: first the 2006 FSEIS capture zone, then the expansion of the capture zone proposed in the Draft NPDES, and then OHA’s proposed capture zone as seen from the south looking north. OHA’s proposed capture zone consists of the Draft NPDES depiction in the north, south and west and with the 2006 FSEIS depicted on the east side. The visualization then transitions to a view looking southwest from northeast of Buckhorn Mountain, and repeats display of the same sequence of capture zones.

About the Project:

Visualizing how groundwater in Buckhorn Mountain interacts with the mine, geologic faults, and dewatering wells is coming closer to reality with OHA’s 3D Visualization Project, which will increase everyone’s understanding of how water moves underground. At this point, we have created a number of animations circling a transparent depiction of Buckhorn Mountain. The color-coded animations include various dewatering and monitoring wells and piezometers in cross sections of interest, with see-through portrayal of the company’s projected faults and underground mine workings. The groundwater levels at key seasons will be added to assist in an analysis of how the dewatering wells are influencing groundwater flow.

Over the years of the mine, OHA has made numerous recommendations to the company that they analyze the actual groundwater monitoring data instead of relying on predictive models, which have not been effective at predicting actual conditions. Early in 2013, OHA initiated a 3D mapping project, which developed into the 3D visualization. OHA is hopeful that this will give everyone another tool to analyze the monitoring data and hopefully see where the gaps are in understanding groundwater flow paths. The end goal is to stop contaminants from escaping the mine.

Analysis of Water Quality Impacts at the Buckhorn Mountain Mine and Recommendations for Improvement

This report (PDF, 1 MB) responds to contaminant increases that triggered adaptive management in Gold Bowl Creek. The increases are more extensive than previously reported. The report provides an overview of important events at the mine, violations and orders submitted by Ecology, information on water quality standards and exceedences that have occurred but were not noted by Kinross or Ecology, and adverse environmental effects that have occurred and their current status. The report proposes recommendations for actions that could be taken by Kinross to increase environmental protection.

The use of reverse osmosis improved the water treatment facility and lowered some contaminants downstream from the discharge points, but others related to blasting have been decreasing more slowly.

Click here to view the full PDF (67 KB)

After the first year of mine operation, not only were there were some significant water quality challenges on Buckhorn, but the required annual reporting was incomplete, lacking basic foundational data needed to analyze the mine’s impacts and the accuracy of model predictions. To quantify the inadequacy of the reporting, OHA completed an extensive review of the mine plans and developed a comprehensive matrix of annual reporting requirements. Using this matrix, OHA assessed the degree to which the company satisfied the requirements for Water Year 2008 and presented the results to the Department of Ecology and Kinross.

On March 14, 2019, the Washington Court of Appeals Division III brought oral arguments in Crown vs Ecology to the Okanogan County Commissioners Hearing Room. The case, in which OHA is an intervener, began with Crown appealing the 2014 renewal of the discharge permit for the mine. After a seven-day trial-like hearing in January 2015, the Pollution Control Hearings Board, decided in favor of Ecology and OHA, affirming that the water surrounding the Buckhorn Mine must be left almost as clean as it was before mining. Crown appealed that decision to the Ferry County Superior Court where Crown also lost. Crown appealed to the Court of Appeal. Crown has asserted that the permit should be stayed (on hold) until the appeal process is exhausted. This assertion has been rejected in each stage of the appeal. While Ecology has issued Notices of Violation, the agency has not yet taken further enforcement action regarding the hundreds of violations.

Click here to listen to the recording of the arguments of this case, #351998.

  • 1
  • 2
  • 5
© Okanogan Highlands Alliance 2019. All Rights Reserved.
Go Back