Water surrounding the Buckhorn Mine must be left as clean as it was prior to mining
Background for 2015 discharge permit renewal:
Discharges at the Buckhorn Mine are regulated by the National Pollution Discharge Elimination System (NPDES) under the U.S. Clean Water Act. The NPDES permit must be renewed every five years. The first Buckhorn Mine NPDES permit went into effect in November 2007, there was a permit modification in June 2009, and it expired in November 2012. The WA Department of Ecology (Ecology) temporarily extended the permit due to complications stemming from significant violations for which a penalty was issued in July 2012. Crown/Kinross appealed the penalty. The second NPDES permit was issued in February 2014 and was appealed by Crown/Kinross the next day. Ecology issued a permit modification in April 2014 and again on April 1, 2015.
The penalty that Ecology issued in July 2012, was for $395,000, the largest in WA State history. Almost a year later, in June 2013, Crown/Kinross and Ecology settled the penalty for the permit violations, in order to break through the deadlock and start finding solutions to the water quality problems at the mine. The penalty settlement forgave all previous water quality violations at the mine, and agreed to a timetable for the issuance of the discharge permit and other provisions. In October 2013, after over 30 meetings with the mining company and their consultants, a draft NPDES permit was presented by Ecology to the public for comment. OHA submitted over 200 pages of comments, including a 3D visualization of the capture zone, which is posted online at: youtu.be/SPE5waXRjfU. OHA pushed for the NPDES renewal to hold the company to discharging water that is as clean as streams and groundwater were before mining began (background levels). There is no reason that higher levels of contaminants should be allowed than were originally present in local streams and groundwater.
The 15 month overdue new permit was issued on February 27, 2014. Despite verbal assurance during the penalty settlement negotiations that they would not appeal the new NPDES, Kinross submitted an appeal to the Pollution Control Hearings Board (PCHB), one day after the permit was issued.
About the Capture Zone in the NPDES permit renewal:
During mining, the area where the mining takes place became contaminated. The new permit clarified that the capture zone represents the farthest extent that contaminants are allowed to migrate from the mine. It also established points of compliance that must maintain background levels.
OHA and our consultants provided extensive comments to Ecology concerning the proposed changes to the map of the capture zone for the mine. Ecology expanded the area that is allowed to be contaminated on most of the east side of the mine. The southeast portion was a hard fought concession the company received in the penalty settlement agreement, which Ecology justified because they had made an error in approving a dewatering well outside the capture zone in that area. Ecology reduced the size of this expansion from what was in the draft permit, so that additional monitoring could be put on Crown’s private land. OHA had hoped that Ecology would acknowledge the mistake and take actions to correct that error, instead of adding another mistake by incorporating the additional area into the capture zone, thereby increasing the area of contamination. Instead, the capture zone was made larger to account for this well’s influence in drawing contaminants away from the mine. OHA called for adequate compliance monitoring in the southeast portion of the mine, outside the capture zone, to ensure that the capture zone is maintained.
The northeast section was approved because the water quality “points of compliance” are still outside the capture zone area depicted on the map. OHA is concerned about the northeast section because there is a fault in this area that creates a preferential flow path in the mine vicinity, which already seems to feed contamination to areas outside the capture zone. The change puts the near surface expression of the fault inside the expanded capture zone; if it is allowed to be contaminated, it may be difficult to control contaminant movement within the fault, and therefore to maintain clean water outside the capture zone.
Although the mine has pumped massive amounts of groundwater from Buckhorn Mountain so they could mine, this has not been sufficient to keep mine contaminants from escaping into the environment. The new permit make it clear that all mine contaminants must be captured and treated before they are discharged, and that no amount of inadvertent discharge from the mine is permitted.
The 2014 permit contains separate compliance standards for surface and groundwater, since background levels for each were different. This stands to reason since groundwater is usually in contact with mineralized rock for longer periods of time than is surface water, and concentrations of major elements and metals can be higher in groundwater as a result. Seeps and springs could have been added to either table, and Ecology chose to incorporate them with the groundwater data.
The 2014 permit increases environmental protection in some key areas while making other areas more vulnerable. Even though the surface expression of the capture zone was expanded, which increases the area that is allowed to be contaminated, the introduction of points of compliance for maintenance of the capture zone is a big improvement. The permit requirement that background water quality levels must be almost met is a major improvement. This requirement applies both to treated water and to water quality outside the capture zone, and will continue as long as treatment is necessary. With time this may bring Buckhorn groundwater and streams back to the levels found prior to mining.
Crown/Kinross NPDES permit appeal to the Pollution Control Hearings Board:Kinross has asserted that the 2014 permit is stayed until the appeal is settled, but they are the only one who hold that opinion. Ecology has stated that they will vigorously defend the permit. OHA has intervened in the case.
The 2014 permit aims to increase protection of the environment by setting compliance parameters at monitoring points outside the capture zone to the highest levels that were found in streams and groundwater before mining. The permit makes it clear that all water contaminated by the underground mine workings and surface facilities must be captured and treated, so that contaminants stay within the capture zone.
During the penalty settlement negotiations, Kinross accepted that the new permit would include:
- A compliance schedule with interim limits
- Performance-based effluent limits
- More stringent capture zone standards, discharge requirements and effluent limits
- New limits based on background water quality
Ecology and the company had many meetings to negotiate the new permit; the new requirements are no surprise. The NPDES permit was carefully developed after many months of negotiating and intensive discussion. Even after agreeing to key permit provisions along the way, Kinross appeal asked the PCHB to reverse and set aside the permit.
It seems like it is easier for Kinross to appeal the permit than to gain control of the pollution the mine is generating.
PCHB Confirms Discharge Permit: On July 30, 2015, the Pollution Control Hearings Board (PCHB) denied Crown Resources/Kinross’s appeal of the NPDES (National Pollution Discharge Elimination System) permit, thereby affirming that the water surrounding the Buckhorn Mine must be left as clean as it was before the mine was developed. The Buckhorn Mine continues to discharge pollutants into the environment in violation of their waste discharge permit.
The PCHB summarized the decision, “The Board concludes that Crown failed to carry its burden to establish the invalidity of the Modified 2014 Permit’s conditions regarding: outfall capacity, compliance schedule, interim discharge limits, final limits, definition of capture zone, and the haul road.”
History has shown that water quality issues arising during mining can last for generations. The PCHB concluded their review by saying, “The conditions in the Modified 2014 Permit requiring the capture and treatment of all Mine-contaminated waters are reasonable provisions that attempt to make certain that the Mine does not leave a legacy of water pollution.”
Crown/Kinross appeals PCHB Decision to Superior Court:Crown/Kinross appealed the PCHB decision upholding the 2014 NPDES permit, this time in Ferry County Superior Court. On August 30, 2015 Kinross’s fully-owned subsidiary Crown Resources filed a petition for review, making many similar claims to those that failed to convince the Pollution Control Hearings Board (PCHB). Kinross continues to claim that cleaning up the water on Buckhorn to the quality it was before mining is a new idea and unachievable. Not only that, but now they are making the argument that the permit conditions were somehow written not by Ecology, but by OHA’s consultant, and that Ecology knows that compliance would be impossible. Kinross claims that the PCHB failed to consider or misconstrued the testimony of their experts in the seven-day trial and asks the court to set aside the PCHB ruling.
Ferry County Superior Court Denies Crown/Kinross Appeal: After a year without movement, on February 22, 2017, Ferry County Superior Court Judge Pat Monasmith heard and denied Crown Resources/Kinross’ appeal of the Pollution Control Hearings Board (PCHB) July 30, 2015 decision, upholding the NPDES permit issued by Washington State Department of Ecology. This ruling affirms that the water surrounding the Buckhorn Mine must be left as clean as it was before the mine was developed. The Buckhorn Mine continues to discharge pollutants into the environment in violation of their waste discharge permit.
The court reviewed the nearly 10,000 page record and heard arguments from Crown, Ecology, and the Okanogan Highlands Alliance, who was an intervener in the case. Acting in its appellate capacity, the court decided that the PCHB had considered and relied upon substantial evidence when it upheld the permit and that the judge would not substitute his judgment for the judgment of the board.
Tasked only with reviewing the order of the PCHB and ensuring that the hearings board had relied on substantial evidence and did not make a prejudicial error of law, the court found that Crown had failed to meet its burden to prove otherwise. Reading directly from OHA’s brief, the judge cited the copious amount of evidence relied on by the board and stated he found that Ecology has made a compelling argument regarding the sole legal issue before the court, summarily upholding the PCHB decision and the validity of the permit.
In his brief to the court, OHA’s attorney, Paul Kampmeier, stated, “Crown does not challenge the Board’s legal conclusions regarding the validity of the permit; instead, it argues the Board improperly weighed or ignored Crown’s evidence in making its findings of fact… Crown argues to the wrong standard of review when it contends the evidence supporting its position requires reversal of the Board’s decision. Crown must instead demonstrate that the findings it challenges do not have a basis in the record.”
The NPDES permit clarifies the farthest extent from the mine that contaminants are allowed to spread. It also affirms that the water quality criteria (beyond this farthest extent) is set at the background level, as it was before the mine was constructed.
Crown/Kinross appeals to Washington State Court of Appeals: Crown/Kinross filed an appeal of the Superior Court decision to Washington State Court of Appeals on April 14, 2017. Over five years after the renewal was issued, oral arguments will be heard on March 14, 2019 by the Washington State Court of Appeals. OHA hopes that the appeals court will also uphold Ecology’s permit and Ecology will respond to the urgent need for enforcement.