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Kinross’ appeal of state board decision denied

A tunnel large enough for a truck to drive through leads into the existing Buckhorn Mine operated by Kinross Gold Corp. near Chesaw.

Dannie Oliveaux
A tunnel large enough for a truck to drive through leads into the existing Buckhorn Mine operated by Kinross Gold Corp. near Chesaw.

REPUBLIC - Ferry County Superior Court Judge Pat Monasmith denied Crown Resources/Kinross’ appeal of the state Pollution Control Hearings Board’s July 30, 2015, decision, upholding the National Pollution Discharge Elimination System permit issued by the state Department of Ecology.

The ruling affirms that the water surrounding the Buckhorn Mine must be left as clean as it was before the mine was developed.

The court reviewed the nearly 10,000-page record and heard arguments from Crown, DOE and the Okanogan Highlands Alliance, which was an intervener in the case.

Acting in its appellate capacity, the court decided that the Pollution Control Hearings Board 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 hearings board order and ensuring that the board had relied on substantial evidence and did not make a prejudicial error of law, the court found that Crown failed to meet its burden to prove otherwise.

Reading directly from Okanogan Highlands Alliance’s brief, the judge cited evidence relied on by the board and said he found DOE has made a compelling argument regarding the sole legal issue before the court, summarily upholding the hearings board decision and the validity of the permit.

“Cleaning up the water at mine site to the standard it was when the mine was permitted is the commitment that the company made to the agency and the community, and it is the right thing to do.” said David Kliegman, executive director of the Okanogan Highlands Alliance. “It is OHA’s hope that many of the good jobs that Kinross brought to the area will continue, as the work to reclaim and close the mine moves forward.”

In his brief to the court, alliance attorney Paul Kampmeier, said, “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,” Kampmeier said. “Crown must instead demonstrate that the findings it challenges do not have a basis in the record.”

The permit clarifies the farthest extent from the mine that contaminants are allowed to spread. It also affirms that the water quality criteria (beyond the farthest extent) is set at the background level, as it was before the mine was constructed.

Crown community and government relations spokeswoman Deana Zakar said the company disputes certain terms and conditions contained in the permit and plans to appeal the decision with the state Court of Appeals.

“The permit is unreasonable, based on flawed assumptions and did not properly consider the natural background water quality levels nor previously permitted mine activities,” Zakar said. “The permit also set an arbitrary and artificial ‘capture zone’ boundary which, among other things, does not account for facilities that fall outside this ‘capture zone’ that were designed and installed to manage this water. As a result, the permit standards are in many cases unattainable.”

Zakar said that while they are disappointed with last week’s court decision, “It is business as usual at Buckhorn as we will continue to operate in an environmentally responsible manner and will appeal the unreasonable NPDES permit.”

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