San Carlos Apache Tribe v. State
| Decision Date | 15 November 2022 |
| Docket Number | 1 CA-CV 21-0295 |
| Citation | 83 Arizona Cases Digest 20,520 P.3d 670 |
| Parties | SAN CARLOS APACHE TRIBE, Appellant, v. STATE of Arizona; Arizona Water Quality Appeals Board; Arizona Department of Environmental Quality, Appellees. Resolution Copper Mining, LLC, Intervenor/Appellee. |
| Court | Arizona Court of Appeals |
San Carlos Apache Tribe, San Carlos, By Alexander B. Ritchie, Justine R. Jimmie, Counsel for Appellant
Arizona Attorney General's Office, Phoenix, By Jeffrey Cantrell, Counsel for Appellee, Arizona Department of Environmental Quality
Perkins Coie LLP, Phoenix, By Christopher D. Thomas, Matthew Luis Rojas, Andrea J. Driggs, Karl J. Worsham, Counsel for Intervenor/Appellee, Resolution Copper Mining, LLC
¶1 San Carlos Apache Tribe (the Tribe) argues Resolution Copper Mining LLC's (Resolution) copper-mining site is a new source under the Clean Water Act (CWA) because Resolution recently sank shaft 10. The CWA treats the new mine shaft as a "new source" because it is substantially independent of the non-contiguous original deposit at the mining site. In short, Resolution radically changed the nature of its existing mining site when it added the new mine shaft—a 7,000-foot-deep shaft designed to use a different mining technique to access a previously untouched, massive copper ore deposit that Resolution predicts will "supply more than 25% of America's demand for [copper ] over the next 40 years."
¶2 As a result, before the Arizona Department of Environmental Quality (ADEQ) issues a permit to allow Resolution to operate the new mine shaft, ADEQ must adopt Total Maximum Daily Loads (TMDLs) for Resolution's discharge of stormwater and non-stormwater—including treated mine water, industrial water, and seepage pumping—into Queen Creek near the town of Superior because Queen Creek is "impaired" for copper under the CWA.
¶3 The controversy arises because ADEQ renewed Resolution's Arizona Pollution Discharge Elimination System (AZPDES) Permit No. AZ0020389 (the permit). The permit ensures Resolution complies with CWA water quality standards for copper mining. The permit authorizes Resolution to discharge (1) stormwater and (2) non-stormwater, including treated mine water, industrial water, and seepage pumping.
¶4 The permit also authorizes Resolution to discharge those waters into an unnamed tributary to Queen Creek near the town of Superior. Queen Creek is "impaired" for copper under § 303(d) of the CWA. See 33 U.S.C. § 1313(d). When discharging into an impaired waterway, mines may not exceed TMDLs. See infra ¶ 64–68. As such, Resolution and ADEQ began drafting TMDLs for pollutants for the impaired waterway, but the TMDLs remain in draft form. See 40 C.F.R. § 130.7. The issue here is which comes first: the permit or the TMDL. We conclude it is the TMDL.
¶5 Resolution's mining site occupies a broad area of land in and near Superior, and Resolution uses it for underground copper mining activities. This area includes the Superior Operations Mine, located along Superior's northern boundary. Resolution's mining site also includes surface facilities located 0.22 miles north of Queen Creek in two non-contiguous areas identified as the West Plant Site (the WPS) and the East Plant Site (the EPS). The WPS is located immediately northwest of Superior. The EPS is located two miles east of Superior near the intersection of Highway 177 and U.S. Highway 60. The mining site included two large copper-ore deposits. The first was the now-exhausted ore body, originally owned by Magma, located in the WPS. The second is the recently discovered and untouched Resolution ore body located in the EPS.
¶6 Resolution's mining site has a deep history. Resolution acquired the mining site from a long line of owners, stemming back to Magma, which built the first iteration of the mining site at the WPS in 1912. Magma constructed shafts Nos. 1 through 8 on the WPS as part of its original mining site. In the 1970s, Magma constructed shaft 9 on the EPS to facilitate better access to the Magma ore body. Before that, the Magma ore body was not accessible via the EPS. Magma also constructed shaft 9 to identify other ore bodies in the EPS. Magma connected the EPS to the WPS through a tunnel facility called the Never Sweat Tunnel. Magma used the Never Sweat Tunnel to transport copper ore from shaft 9 to processing facilities at the WPS.
¶7 At one time, the owners extracted ore from the Magma ore body. For extended periods, the owners left the site all but destitute aside from doing the bare minimum to maintain the site, including groundwater pumping and exploration. In the early-to-mid 1990s, the owner at the time, Broken Hill Proprietary Company, Ltd. (BHP), discovered the untouched Resolution ore body in the EPS.
¶8 Even after BHP discovered the Resolution ore body, BHP ceased actively mining ore at the Superior mining site in 1996 when it depleted the remaining mineable reserves out of the Magma ore body. Two years later, BHP ceased all other ore mining activities—except for applying to renew the permit—for a variety of reasons, including the costs of maintaining the mining site, falling copper prices, limited data on the Resolution ore body, and a lack of suitable infrastructure to exploit the Resolution ore body. Since discovering the Resolution ore body more than two decades ago, no mine owner has extracted ore.
¶9 Starting in 2000, the Superior mining site ownership changed hands, and Resolution began exploring. In 2004, Resolution began planning new additions at its mining site, including shaft 10, a cooling tower, rock stockpiles, wash bays, and a Mine Water Treatment Plant (MWTP). In 2008, Resolution began constructing shaft 10—the most significant addition. Around this time, Resolution also resumed dewatering at the existing Magma facilities to help facilitate a study for its new construction plans. Dewatering uses water through a system of pumps, pipes, and conveyances to process and access ore and mine discharge drainage.
¶10 By December 2014, Resolution spent approximately $500 million to complete shaft 10. Shaft 10 is 30 feet in diameter and extends 6,943 feet below ground surface (bgs). Resolution built shaft 10 about 300 feet away from shaft 9. Shaft 9, by contrast, only extends 4,882 feet bgs—more than 2,000 feet shy of shaft 10's depth. Resolution rehabilitated and extended the Never Sweat Tunnel as part of constructing shaft 10.
¶11 Since Resolution constructed shaft 10, the only parts of the original mining site remaining operational are the Never Sweat Tunnel and shafts 8 and 9. Resolution uses shaft 8 to dewater the WPS. Resolution uses shaft 9 to support shaft 10, such as for ventilation and flowing mine drainage from shaft 9 to shaft 10. Resolution still actively uses the Never Sweat Tunnel to pump mine drainage from shaft 10 to the WPS, where the MWTP processes it. Resolution's focus with building the new facilities, like shaft 10, has been to target the yet untouched Resolution ore body.
¶12 Resolution plans to access the Resolution ore body using panel caving. Panel caving is a variation of the high-volume technique known as block caving. Previously, the Superior site owners used adits and tunnels. With panel caving, Resolution will access the ore by caving in the ore zone and causing it to collapse—which will eventually cause ground subsidence. Resolution predicts the Resolution ore body will "supply more than 25% of America's demand for [copper ] over the next 40 years."
¶13 The Environmental Protection Agency (EPA) issued the original permit in 1975. The EPA issued the permit, including its renewals, until 2002, when the State of Arizona took primacy over the CWA and the NPDES permitting. Since then, ADEQ has issued permits to individuals, including Resolution for its copper-mining site.
¶14 In 2015, Resolution applied to renew the permit. In 2017, ADEQ issued the renewed permit, which had an effective date of January 23, 2017, and an expiration date of January 22, 2022. The renewed permit allowed Resolution to operate its mining site, including shaft 10 and the other new facilities at the site, and treated them as existing sources.
¶15 Several months after the renewal, the Tribe challenged ADEQ's treatment of shaft 10 and several other new facilities before the Water Quality Appeals Board (the Board). The Tribe argued those facilities were new sources, not existing sources, under 40 C.F.R. §§ 122.2, 122.29. The Board referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing. In February 2018, OAH held the hearing before an OAH administrative law judge (ALJ). And on October 15, 2018, the ALJ issued findings of fact and conclusions of law, deciding ADEQ generally did not act arbitrarily and capriciously when it renewed the permit in 2017. The ALJ, however, took exception to ADEQ's failure to consider whether Resolution's new facilities, including shaft 10, were new sources under 40 C.F.R. §§ 122.2, 122.29(b). See infra ¶ 37. The ALJ, thus, recommended the Board remand the matter to ADEQ to conduct a new source analysis under 40 C.F.R. § 122.29(b). The ALJ did not decide whether Resolution's site was a new source.
¶16 In November 2018, the Board remanded the matter to ADEQ to conduct a new source analysis. The Board's remand order also allowed ADEQ to ignore some of the ALJ's findings of fact and conclusions of law when ADEQ conducted the new source analysis.
¶17 In 2019, ADEQ issued its new source analysis. ADEQ's new source analysis concluded Resolution's mining site was not...
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