Arizona Supreme Court gives Resolution Copper a win in wastewater discharge appeal

Resolution Copper East Plant. Photo via Facebook

The Arizona Supreme Court sided with the Arizona Department of Environmental Quality and Resolution Copper to allow the discharge of treated wastewater from potential future mining operations into Queen Creek.

The June 27 ruling removes another roadblock to a controversial mining project that would leave a massive crater at the site of Oak Flat, an area east of the town of Superior near iconic Arizona natural features Apache Leap and Picketpost Mountain.

The decision represents another small victory for the international mining conglomeration behind Resolution, but the San Carlos Apache Tribe and a number of environmental groups still have challenges pending in the courts.

The wastewater permit has been in place for decades and was renewed by the ADEQ in 2017, but the San Carlos Apache Tribe sought to have it revisited, citing section 303 of the Clean Water Act (CWA) intended to “restore and protect our Nation’s waters.”

The initial permit was issued by the Environment Protection Agency in 1975 and renewed every five to eight years through 2002, when the EPA delegated permitting authority to ADEQ.

The tribe challenged 2017 the renewal through the Arizona Water Quality Appeals Board, claiming that construction since 2008 created a “new source” of wastewater that required additional analysis to satisfy the CWA.

After the appeals board sided with Resolution and ADEQ, the tribe requested a hearing from an administrative law judge. After a  weeklong hearing, the administrative judge found that ADEQ did not act “arbitrarily and capriciously,” but should have done additional analysis as to whether recent construction constituted a “new source” of wastewater or an “existing source.”

The issue was remanded to ADEQ in order for the regulator to analyze whether Shaft 10 — completed in 2014 — and the ADEQ confirmed its earlier findings that the shaft and other recent construction was an existing source.

The tribe appealed the decision to the superior court, which found in favor of ADEQ. But after the appellate court ruled in favor of the tribe, ADEQ and Resolution appealed to the Supreme Court. Thursday’s decision from the high court ends the discussion over the permit.

Historical context

Mining has been taking place on the site since 1912, when the Magma Copper Company began operations around Superior. Magma built eight mining shafts at the original site and, in the 1970s, built Shaft 9 to ease access to the Magma ore body that lay beneath the region.

Shaft 9 was also intended to facilitate further exploratory work on the East Plant Site, and a tunnel dubbed the “Never Sweat Tunnel” was built to connect the east plant to the West Plant Site and transport ore to the processing facilities there.

Throughout the history of the mine, owners extracted from the Magma ore body, but there were also periods of neglect for the facilities until the mid-1990s. It was then that previous owner Broken Hill Proprietary Company, Ltd. (BHP) discovered the Resolution ore body, one of the largest remaining copper reserves on the planet.

BHP, however, ceased mining at the site in 1996 after depleting mineable material out of the Magma ore body, citing the cost of maintaining the site and falling copper prices. Additionally, there was insufficient infrastructure to determine the size of the ore body or extract the copper that lay below. The mine eventually filled with water

In 2004, Resolution Copper took over operations. Resolution Copper is a partnership between Rio Tinto, a multi-national mining corporation headquartered in London — it is the third largest mining company in the world — and BHP Billiton, a successor to BHP.

Resolution began construction of additional facilities in 2008, including a cooling tower, rock stockpiles, wash bays, a mine water treatment plant and Shaft 10.

The 30-foot diameter shaft, which extends 6,943 feet below ground surface, is about 300 feet from Shaft 9, which plunges to a depth of 4,882 feet. The company estimates the cost of construction to be about $500 million.

Resolution intends to build new facilities and utilize Shaft 10 to access the Resolution ore body with a technique known as “panel caving,” which would eventually collapse Oak Flat and leave a crater more than one mile wide and 1,100 feet deep. The crater would come within 1,000 feet of Apache Leap in an area famous for its rock climbing and natural beauty. The site is also considered sacred by the San Carlos Apache and other Indigenous people.

Resolution claims the project would ultimately employ somewhere in the neighborhood of 1,400 people, inject $20 billion into Arizona’s economy and supply the United States with one-quarter of its copper for the next 40-60 years.

Water

Should mining get underway, Resolution Copper is expected to use 16,000 to 20,000 acre-feet of water per year. As a comparison, the City of Mesa, with a population of about 500,000, uses approximately 91,536 acre-feet per year.

One acre-foot of water equals 325,851 gallons, or the amount of water needed to cover an acre of land a foot deep. On average in Arizona, one acre-foot of water is enough for 3.5 homes for a full year.

The Arizona Court of Appeals reversed the trial court’s decision, arguing that Shaft 10 “is a new source and Resolution’s mining site is subject to [new source performance standards] under 40 C.F.R. § 440.104(a).”

But the Supreme Court decided the additional construction was not a new source of wastewater and thus did not require additional regulation or planning.

According to Resolution’s General Plan of Operations, after water is treated on site it will likely be used for mining operations such as ore processing, dust suppression, equipment washing, drinking water, cooling or fire protection.

Any excess water would be used for irrigation through a contract with the New Magma Irrigation and Drainage District, located 30 miles southwest of the mine. If the irrigation district does not have capacity, Resolution is authorized to pipe the treated water into a tributary that flows into Queen Creek.

At this point, Resolution has not utilized Queen Creek for excess treated water and intends to continue selling it to the irrigation district.

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