NPDES Appeal Finally Heads to Court

After a year without movement, the Crown Resources/Kinross Gold (Crown/Kinross) wastewater discharge permit appeal will be heard by the Ferry County Superior Court in February of 2017.  The permit appeal was originally heard by an environmental hearings board in Olympia, which sided with the Department of Ecology (Ecology) and OHA by upholding the permit in its entirety.  This administrative proceeding dealt a significant blow to the company, which sought relaxed water quality standards for the area impacted by the Buckhorn Mine. Crown/Kinross now seeks a second chance at relaxing permit standards in its appeal of the administrative decision to the county court.

The Clean Water Act (CWA) prohibits Crown/Kinross from polluting state waters. The CWA is administered in Ecology, through the National Pollution Discharge Elimination System (NPDES) permit process. Crown/Kinross challenged the mine’s 2014 NPDES permit, but lost at the Pollution Control Hearings Board (PCHB) with the Board upholding the validity of the permit. The mining company appealed the PCHB’s decision to Ferry County Superior Court in August 2015.

Crown/Kinross submitted its opening brief on September 19th. There are no surprises in the company’s brief. They argue that the permit criteria are too stringent and that the capture zone is arbitrary. Crown argues that the PCHB did not consider the testimony of their experts when, in fact, the Board simply found Ecology’s and OHA’s experts more compelling. Crown/Kinross seems to want to retry the entire case. However, the appeal before the Ferry County Superior Court is a review of the record of the case, to make sure that any issues of law were interpreted correctly. 

Ecology submitted its response brief on Oct 19th.  Ecology explained that the standard of review in a case like this gives a high degree of deference to the agency. Point for point, Ecology addressed Crown/Kinross’ allegations and provided the evidence that was presented at the PCHB’s week-long hearing in early 2015. Ecology’s brief described some of the PCHB’s key conclusions, including the fact that detrimental water quality impacts from the mine should have been avoided through mitigation measures identified in the Final Environmental Impact Statement used to permit the mine. Ecology also reiterated the Board’s determination that the Permit provides Crown with “sufficient flexibility to conduct mining operations consistent with the requirements of state and federal law,” and that the requirements that the mine capture and treat all mine-contaminated waters are “reasonable provisions that attempt to make certain that the Mine does not leave a legacy of water pollution.” 

As an intervener in the appeal in support of Ecology, OHA also submitted a response brief on Oct 26th. OHA emphasized that the Board reviewed the extensive evidence presented, weighed the evidence, and made its determination that the permit is reasonable and within Ecology’s discretion. OHA emphasized that Crown is responsible for all pollution from the mine and related facilities. Before Crown put a mine on Buckhorn Mountain, the waters that flowed from the area were of the highest quality. Throughout the environmental review and permitting of the Mine, Crown promised the public and reviewing agencies that the company would capture and treat all contaminated waters. OHA asked the court to uphold the Permit and to deny Crown’s appeal.  Crown will submit a reply brief on December 2nd.