| Earthrise Fights Water Pollution from Massive New Copper Mine in Arizona
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About an hour east of Phoenix, near the southern edge of the Superstition Mountains and deep in the heart of Tonto National Forest, multinational mining conglomerate Rio Tinto (through its subsidiary, Resolution Copper LLC) is developing a new mine that it predicts will supply a quarter of U.S. copper demand for 40 years. Still under construction, the massive Resolution Copper Mine already has the deepest single-lift mine shaft in North America, which descends more than a mile straight down into the earth’s crust where the humid air is a scalding 140 degrees.
The sheer size and potential environmental impact of the Resolution Mine is staggering: the mining process will create a subsidence crater 1,100 feet deep and several miles in diameter, and the mine is projected to leave a 500-foot high tailings pile covering more than 3,500 acres of land on the outskirts of the town of Superior. The U.S. Forest Service is still drafting an Environmental Impact Statement for the Resolution Mine. While the mine won’t be active until 2020 at the earliest, it has already applied for many of the permits it will need to operate.
Earthrise represents three organizations—Arizona Mining Reform Coalition, Concerned Citizens and Retired Miners Coalition, and Save Tonto National Forest—in an administrative appeal of the Arizona Point Discharge Elimination System (AZPDES) permit issued to the mine in 2017. One key issue in the case is whether the Resolution Mine should be classified as a “new source.” This has important ramifications for the AZPDES permit because EPA’s regulations prohibit the issuance of permits to new sources that cause or contribute to a violation of state water quality standards. The permit issued by the Arizona Department of Environmental Quality (“ADEQ”) authorizes the discharge of copper to nearby Queen Creek, which is already impaired for copper under section 303(d) of the Clean Water Act. We contend that the new copper loading from the mine will not only contribute to the current copper impairment but will prevent Queen Creek from ever coming into compliance with the copper water quality standards, based on assumptions used in ADEQ’s draft calculation of the acceptable total maximum daily load (TMDL) for dissolved copper for the creek.
One might think that this gigantic new mine would be considered a “new source” that is subject to more restrictive permitting standards. Unfortunately, ADEQ instead considers the Resolution Mine to be an existing source because it is being built in part on the site of an older, now-defunct copper mine called the Magma Mine. The mine proponent is repurposing some of the old Magma facilities and mine tunnels to support the new mine. But aside from some limited shared infrastructure, the two mines could not be more different.
In February 2018, Earthrise attorney Jamie Saul represented these citizen organizations in a seven-day contested case hearing before an administrative law judge with the Arizona Office of Administrative Hearings. At the hearing we called nine witnesses, including an expert hydrogeologist, members of our client organizations, and employees of Resolution Copper and ADEQ. We presented compelling evidence to show that the Resolution Mine is an entirely different operation than the predecessor Magma Mine, and will employ a radically new mining method and construct myriad new buildings, facilities, tunnels, and other structures on previously undeveloped lands, many of which will generate copper pollution for eventual discharge to Queen Creek.
We are in the midst of post-hearing briefing now, and expect a decision from the Administrative Law Judge in late summer 2018. A win for our clients will mean that the AZPDES permit may not be issued as written, and will require Resolution Copper to either abstain from discharging any copper to Queen Creek or treat its effluent to the point where it no longer contributes to the ongoing copper pollution in the creek.
The effort to prevent the $6 Billion Resolution Mine from becoming the latest environmental catastrophe will be long, and many other organizations, agencies, and tribes are playing important roles in the fight. Earthrise is pleased to be able to lead the effort to ensure the mine complies with the Clean Water Act and protects Queen Creek and the aquatic life it supports.
For a great overview of the Resolution Copper Mine, including a peek inside the new 6,780 ft. deep Shaft #10, see this Bloomberg Business video: https://www.youtube.com/watch?v=N0y4zYMYOrQ.
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A 3D rendering of the location of the Resolution Mine, just east of Superior, Arizona. The mine will be built just behind a beautiful and historic escarpment called Apache Leap; the orange circle is the approximate location of the future subsidence crater. (Photo: Ron Aker / flickr.)
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Wrapping Up Another Clinic Year
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This year’s Earthrise Clinic wrapped up another great year. Students enrolled in the clinic work 10-12 hours per week on environmental cases under the supervision of an Earthrise staff attorney, in addition to a two-hour class every week. Classes cover a variety of topics, usually about ongoing Earthrise litigation. Students, alongside their supervising attorneys, prepare presentations to give to the class each week.
Students were able to work and present on a variety of matters this year including our case about nonpoint source pollution in Washington under the Coastal Zone Act Reauthorization Amendments (CZARA), several cases we have pending under the Freedom of Information Act, our Resolution Copper and Cooke Aquaculture cases, among many other matters. Throughout the year we were able to have special classes, like our career panel, due to alumni and friends generously donating their time. Thanks again to Lizzy Potter, Amy Van Saun, Karl Anuta, and Kieran O'Donnell. Also, this year, Earthrise alumnus and co-counsel in the Walton Lake logging case, Jesse Buss, came to class to help present on that topic, with our clients from the Blue Mountains Biodiversity Project in attendance.
Second year law student Paige Fennie had this to say about the clinic. “Earthrise provided me with an incredible opportunity to learn from and work amongst a brilliant and driven group of attorneys and fellow students on issues I came to law school tackle. The collaborative structure of the class component exposed me to a variety of environmental cases and the different ways to approach the laws that apply to them. Most importantly, I was able to use the knowledge I gained in law school thus far on cases affecting the natural resources and communities I care deeply about. This clinic not only affirmed my desire to become an environmental attorney, but also taught me how to be a successful one.”
Teresa Smith, who worked on litigation regarding Federal loans to CAFOs in Maryland with Senior Staff Attorney Kevin Cassidy, cited the ability to specialize within Earthrise as a highlight of the class. “The Earthrise Clinic exceeded my expectations. I was able to work on such a wide variety of cases and was exposed to various different stages of litigation. At the same time, I was able to work in-depth on a case that falls right within the niche of environmental law that I hope to focus on. It was this case that helped me get my ideal summer internship with Food & Water Watch where I will be able to work more with food and agriculture issues in the environment."
The clinic wrapped up with our year-end event at Lucky Lab. We were happy to see our students off and hope that everyone has a great summer. Best of luck to everyone who is studying for the bar exam.
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In this issue
- Earthrise fights Net Pen disasters in Puget Sound
- Water Pollution from Copper Mining in Arizona
- A year in review: The Earthrise Clinic
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| Please consider becoming a monthly donor of Earthrise to help sustain our important work!
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| Earthrise Works to Force Cooke Aquaculture to Clean Up Its Act in Puget Sound
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| On behalf of Wild Fish Conservancy, in November, Earthrise, along with our co-counsel at Kampmeier & Knutsen, filed a lawsuit in federal district court in Washington against Cooke Aquaculture for Clean Water Act violations related to the near-complete structural failure of its Atlantic salmon farming facility in Deepwater Bay off of Cypress Island.
The now infamous incident from last August released approximately 260,000 farmed Atlantic salmon into Puget Sound, along with dead fish carcasses, and massive amounts of debris, according to state regulators. This escape event off of Cypress Island represents a dire threat to already imperiled wild fish populations, beloved marine mammal species, and the fragile Puget Sound ecosystem as a whole. The facility that collapsed is one of eight Atlantic salmon net pen facilities that Cooke owns and operates in Puget Sound.
Many efforts have been taken by local tribal, commercial, and recreational fishermen to remove the escaped Atlantic salmon from public waters. However, many thousands eluded capture and are currently spreading throughout the farthest reaches of the Salish Sea and beyond. According to the Washington Department of Fish & Wildlife, escaped Atlantic salmon have been found from southern Puget Sound all the way up to northern Vancouver Island.
While Cooke initially blamed the collapse on unusually high tide swings generated by the eclipse, it has since retreated from that claim, which was unsupported by tide data. In early October, Washington’s Department of Natural Resources inspected one of Cooke’s other Atlantic salmon facilities in Puget Sound, and concluded that Cooke was failing to maintain its facility in good working order and repair under the terms of its lease.
“The August release in Deepwater Bay is not an isolated incident. Rather, the escape represents yet another act of negligence in a long line of transgressions on the part of the Atlantic salmon net pen industry in Puget Sound, including three major escape events in the 1990’s and a deadly disease outbreak in 2012,” said Kurt Beardslee, Executive Director of Wild Fish Conservancy.
On February 15, 2018, our client Wild Fish Conservancy received independent lab results demonstrating that 100% of Cooke’s escaped Atlantic salmon tested were highly infected with a highly contagious and debilitating salmonid virus, Piscine Orthoreovirus (PRV), and that the strain of the virus is of Norwegian origin, which happens to be where Cooke sources its eggs.
Thankfully, the incident triggered a massive public outcry, and on March 22, 2018, Governor Inslee signed a bill into law that will phase out Atlantic salmon farming in Washington State by banning new leases or lease renewals. With the passage of this law, Washington joins the entire U.S. west coast in expelling the harmful Atlantic salmon net pen industry from its public waters, a major victory for wild salmon in the Pacific Northwest.
However, Cooke still has years to operate under its current leases, and has threatened to bring a NAFTA challenge against the state over the newly signed lease ban. Therefore, even though Cooke’s days in Puget Sound may be numbered, we need to keep the pressure on by holding Cooke accountable for its reckless operation and maintenance procedures and inadequate fish escape and pollution prevention plans. We are currently in the midst of discovery, with a trial set for March 11, 2019.
Earthrise Legal Fellow Doug DeRoy and Senior Attorney Kevin Cassidy are working on this case alongside co-counsel Brian Knutsen and Paul Kampmeier of Kampmeier & Knutsen, PLLC.
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| Aerial view of Cypress Island Site #2 pen, after it collapsed in late August
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