Updated 9/21/2015, Kinross appeals PCHB Decision to Superior Court:
Kinross has once again appealed the March 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.
Original Appeal to the Pollution Control Hearings Board:
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. Kinross asserts that the new 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 new permit, effective March 1st, aims to increase protection of the environment by setting compliance parameters at monitoring points outside the capture zone to levels that were found in streams and groundwater before mining. The new 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.
Kinross Appeal Specifics Include...
Outfall Capacity: Even though the permit provided for unlimited discharge as long as they are properly engineered and authorized by the landowner, Kinross alleges this is not adequate. Kinross claims that the water quality criteria for turbidity in the permit will limit their outfall capacity and thus their ability to dewater the mine and maintain the capture zone. They have not in fact maintained the capture zone since mining began, regardless of these criteria, but excess discharge has caused slope instability and erosion.
Compliance Schedule and Interim Limits: Kinross claims that the interim water quality standards outside the capture zone will not be achievable within the required timeframe. This is interesting, since the interim limits are the same as the old limits. Kinross was always required to maintain a capture zone and has never done it. Kinross had agreed in the penalty settlement that the new limits would be background levels and now the company is appealing, alleging that the interim limits contradict the penalty settlement
Final limits: Kinross alleges that Ecology used incorrect calculations to determine background water quality and the new permit limits. Background water quality criteria are based on baseline data collected before the mine began operating. OHA’s take is that it will be difficult to achieve background limits unless Kinross makes a concerted effort to address mine leakage
Definition of Capture Zone: Kinross alleges conflicts in the permit between the maps and tables regarding the capture zone, and states that there are some mine facilities outside the capture zone. Moreover, they say the capture zone in the permit is not large enough for them to be able to capture all contaminants. The company’s approach seems to be based on expanding the capture zone to include those areas that have already been polluted. This is not the intent of defining a limit for the area that is allowed to be contaminated.
Performance Based Limits for the Mine Water Treatment Plant: Kinross complains that the new performance-based limits for the Mine Water Treatment Plant do not properly consider future performance, based on projected reduction in water quality in the mine. However, even if projected changes become real, there is no reason for treated water to be released with higher levels of contaminants.
Haul Road: Kinross claims that since the haul road management is in coordination with the US Forest Service, the permit requirements exceed Ecology’s authority. In fact, Ecology has the responsibility to ensure protection of resources on land that is also under the jurisdiction of other agencies.