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A complicated past
By Daniel Rothberg
Under an agreement signed last year, the state is overseeing an extensive cleanup of the Anaconda Copper Mine amid criticism and a complex history.
Under an agreement signed last year, the state is overseeing an extensive cleanup of the Anaconda Copper Mine amid criticism and a complex history.

The contamination came in waves.

First came the Anaconda Copper Company. The Montana-based mining giant operated the Yerington copper mine starting in the 1950s, and over the next twenty-five years, it extracted nearly two billion pounds of the conductive red metal, applying processes that left millions of tons of waste. Through the 1960s, the company disposed of tailings in unlined ponds, creating a contamination pathway to the local aquifer and tainting water supplies with arsenic and uranium. State regulators said they would not approve a mine with those ponds under today’s permitting. 

Although it would be nearly three decades before the uranium issues were revealed in a public way, there was enough uranium that a report in 1976 looked at selling it for nuclear reactors. 

By 1978, Anaconda had halted its operations. The mine had changed hands to Atlantic Richfield, known as ARCO, after the Anaconda Copper Company merged with a subsidiary of the oil giant. For ARCO, the consequences of that deal proved long-lasting. It was inked while global copper prices slumped. And to this day, ARCO — now under the auspices of BP, an even larger corporation — is responsible for Anaconda’s pollution across the West.

Before long, ARCO offloaded the copper mine to a Yerington businessman, and by 1989, the site was sold again, eventually falling into the hands of an Arizona-based miner: Arimetco.

Then came another wave of contamination.

Arimetco left Anaconda’s pit — about one-mile long, 800-feet deep and filling with water — largely untouched. Instead it worked on about 250 acres, isolating copper by sending acidic fluid through heaps of ore. Regulators say the liners it used to protect groundwater from toxic drainage were leaky and the acidic solution created some of the most immediate hazards at the mine. When Arimetco went bankrupt, it left about 90 million gallons of acidic fluid. Lacking the proper bonding, it also left Nevada a multimillion-dollar unfunded liability, known as the “orphan share.”

Nearly two decades since mining stopped, contamination lies silently in the heaps and in a toxic groundwater plume that, over time, has snaked below homes and toward the Yerington Paiute Tribe’s reservation. As workers break ground on the long-term cleanup, the mine’s history — one of shifting ownership and shifting regulatory authority — echoes in the background. It has fueled mistrust to such an extent that, despite more than 15 years of well testing, there remain differing perceptions about the degree of contamination, its risks and who is responsible for it.

At the center of the cleanup is the Nevada Division of Environmental Protection. 

In 2018, the EPA handed the division oversight of the cleanup as part of a deal with a Trump administration eager to “streamline” the Superfund list, where polluted sites often compete with each other for federal dollars. But the administration did so through a task force that did not record minutes of its meetings and was later questioned by the agency’s internal watchdog. Under a formal Superfund listing, contaminated sites can become eligible for federal funding.

Deferring the Superfund listing was on the table before President Trump came to office. When Gov. Brian Sandoval agreed to a listing in 2016, he left open the door for the state to lead the cleanup with private funding. Later that year, he got what he wanted as Atlantic Richfield sidled to the table. The company, looking to avoid a listing, would agree to take on the liability for Arimetco’s “orphan share” — estimated at $30 to $40 million — if the EPA stepped aside. 

Despite a concerted push by former Senate Majority Leader Harry Reid, activists and two tribes to put the mine on the Superfund list, Nevada governors have generally viewed a listing as a last resort. They argued that a state-led cleanup would prevent the site from languishing on the list and that private — not federal — funding would end in a faster, less-costly clean up.

Not everyone saw it that way.

Supporters of a Superfund listing had long argued the state lacked the same political leverage and technical expertise as the EPA to hold the corporation accountable for doing a full cleanup. 

Gov. Steve Sisolak, in a statement Friday, said that he supported the deferral agreement following conversations with officials at the division, tribal leaders and other local interests. 

“Based on these discussions, I believe deferral is the most effective pathway to quickly clean up the mine site to the highest standards under all state and federal requirements,” he said.

Sisolak added that his administration “will continue to closely monitor the cleanup efforts to ensure that the NDEP continues holding the Atlantic Richfield Company accountable to the high standards and costs necessary for cleaning up the site.” He said that he instructed the division to communicate regularly with the tribes “to ensure their concerns are adequately addressed.”

But given the division’s focus on time and cost, Howard Watts, a Democratic assemblyman and an environmental activist, still worries the company could shortcut the process under the state’s oversight, especially when it comes to remediating the groundwater plume. 

“The way they are talking about these issues can lead one to see their focus is minimizing costs to the state and the company — and that leaves people on the hook,” Watts told The Nevada Independent. “I don't think that's appropriate, and I don't think that's the role NDEP should play.” 

Sitting in front of mine maps and fact-sheets laid out on a conference table, Greg Lovato, the division’s administrator, said his agency was prepared to push back on Atlantic Richfield.

“I am not going to deny that they’re looking to save money,” he said in one of three interviews. “They're going to be testing us, and we're going to be pushing them at every corner of this.”

Before coming to the division, Lovato worked as an environmental engineer for the EPA’s regional office. He said there was a misconception that the agreement meant EPA had bowed out of the process. The EPA won’t draft the plan to remediate the site, yet the federal agency, he said, will still review whatever remedy the state selects to ensure that it is legally compliant. If the federal agency is not satisfied, he said “they can terminate deferral.”

Lovato said he wants his agency to be judged by its actions.  

“Hold us accountable for progress, for schedule, for protectiveness,” he said. “We actually have a schedule and EPA didn’t. But I don’t think we’re given any credit for that or the fact that we garnered upwards of $30, $40 million from Atlantic Richfield that would have been paid for by the taxpayers. You would have had to compete for that money with all the Superfund [sites].”

As for Atlantic Richfield, it saw clear advantages with the deal.

For one, it saw a way to expedite the cleanup process. An Atlantic Richfield spokesperson, in an emailed statement, said the state agency and company “believed that having NDEP assume the lead oversight role for the site would lead to a more timely, efficient, and cost-effective remedy.” 

The Atlantic Richfield spokesperson, Michael Abendhoff, continued, arguing that the EPA’s administrative processes are often “very time-consuming and inefficient.” 

“NDEP is much closer to the site than the EPA team that operated from San Francisco,” he said. “NDEP can focus specialized resources, with experience on other Nevada mine sites, on this project. NDEP was also able to develop a more fit for purpose and efficient remedy decision and implementation schedule allowing the project to proceed more quickly. Together, this structure made it viable to [Atlantic Richfield] to agree to assume most of the orphan share liability.”

The Richard H. Bryan Building, which houses the Nevada Division of Environmental Protection, in Carson City, Nev. on Sept. 13, 2019. (Daniel Rothberg/The Nevada Independent)

That a for-profit company decided to pay millions for contamination that it did not directly cause — if a state regulator was in charge — is a fact that concerns many critics of the deal. Although most agree the deferral deal can’t be undone in a Trump presidency, they remain wary. Environmentalists, local activists and the tribes have turned their focus to holding the state accountable for its actions and how it communicates to the public. 

“Words also matter,” Watts said. 

“The way that you engage with different communities and organizations matter, and is an action on its own,” he added. “And I think on that front, they have missed a lot of opportunities." 

Contrary to statements from state officials, the EPA did produce at least one thorough schedule, from 2017. A review by the The Nevada Independent shows it offers a detailed timeline for more than one hundred tasks, from public comment to feasibility studies, to address several hot spots at the 3,600-acre site. When asked about this, a spokesperson conceded in an email that the EPA had a schedule. The division said the EPA “schedule was limited and did not include a timeframe for selection and implementation of final remedy for the entire site.”

The site cleanup is broken into eight areas. The EPA schedule only focused on the priority areas, Lovato noted, whereas the state’s schedule includes a timeline for the entire site. 

For critics of the agency, this kind of discrepancy is an echo of years of mistrust.

The division faces a checkered past with its public handling of Anaconda. In the early 2000s, officials downplayed the extent of the groundwater contamination and got involved in a fight with a federal land manager who later won an administrative whistleblower settlement for raising concerns about the uranium. Reid, then Senate minority whip, was also criticizing the agency. 

Pushing for the Superfund listing in late 2004, Reid once went as far as to describe the dynamic as “big business overwhelming a little state, and the state doesn't have the power to fight them," according to an Associated Press article. Even as late as December 2015, Reid wrote a letter saying a listing would offer “stronger leverage” in holding the company accountable. 

There is no doubt state regulators need to earn back “a level of trust,” Lovato said. But he said his agency had changed over the nearly two decades since, adding resources and experience.

“There's that level of trust that we need to earn back through executing this cleanup,” he said. “I don't think it’s going to come through us talking. It's going to come through us getting this done.”

The agency points to the Henderson Black Mountain Industrial Complex as an example of its experience with complicated cleanups. Legacy disposal methods, including the use of unlined ponds, tainted water. Some contaminants entered the Las Vegas Wash, which connects to the Colorado River at Lake Mead. The cleanup involved multiple parties and a perchlorate plume.

In 2004, NDEP had only one staff member handling the Anaconda case and another part-time specialist juggling the Henderson complex as well as other cleanups. A spokesperson said in an email that it has since expanded its staff, creating a dedicated abandoned mine lands program with groundwater experts and the ability to contract for further risk assessments and modeling.

If the Anaconda cleanup is successful, Lovato said people might say: “OK, NDEP has changed.”

Long-time activists such as Peggy Pauly aren’t ready to buy it. 

“You can never say never,” she says. “But I think that’s a hoot.”

Pauly led a citizen-advocacy group pushing regulators to take the mine cleanup seriously, and she was a vocal figure in the debate over how to remediate the pollution. Pauly moved into a home bordering the mine in 1991, and she and her husband, a Yerington minister, did not think much of the copper extraction next door. Their consideration, she says, was “it’s a mining state.” 

And “we’re not against mining,” she adds. 

Around 2004, an employee working for the Bureau of Land Management (BLM) began publicly voicing concerns about uranium in the groundwater stemming from mine contaminants. Soon after, Pauly started the Yerington Community Action Group to push for more research at the site. 

By 2009, more EPA testing found that the mine had contributed to high levels of uranium in local wells north of the site, according to a widely published article by the Associated Press. 

For many years, state regulators and Atlantic Richfield had largely dismissed the presence of uranium as naturally occurring. Although the extent of the mine’s contamination is still being determined as contractors outline groundwater flows in a remedial investigation report due next month, state regulators no longer dispute that mining tainted a portion of the off-site aquifer.

Past findings were compelling enough that in 2013, Pauly and about 700 one-time residents won a class-action settlement for $19.5 million after accusing the company of “intentionally and negligently” hiding the extent of contamination in their wells, The Associated Press reported. As part of the settlement agreement, Atlantic Richfield and BP acknowledged no wrongdoing. 

The pit lake at the Anaconda Copper Mine outside of Yerington, Nev. (David Calvert/The Nevada Independent)

Shovels hit the ground on Aug. 26. 

Contractors for the company are building new evaporation ponds to catch acidic fluids coming from Arimetco’s abandoned facilities after rain or snow. The lined ponds are meant to prevent any chemicals from further contaminating the groundwater. Eventually crews will reslope and cap Arimetco’s abandoned heaps, a long-term solution to reduce continual discharge. 

State Senate Minority Leader James Settelmeyer, a Republican whose district includes Yerington and the Anaconda Copper Mine, said that he was frustrated with the slowness of the EPA’s response. He heard the same thing from constituents: They wanted something done. 

“Nothing has been done for a long time,” he said. “Something is better than nothing.”

Others view the deferral agreement as an opportunity that vanished. 

Despite small wins, Pauly described advocacy mirroring the fate of Sisyphus, the mythological figure condemned to push a rock up a hill and watch it fall, only to be forced to push it up the hill again and again for eternity. Since the deferral,  Pauly’s group has disbanded. She said getting federal funding seemed like a “no-brainer” and described the agreement as the “last straw.”

“It’s discouraging and disappointing,” she said.

Peggy Pauly, an activist who pushed for listing the Anaconda Copper Mine as a Superfund site, stands in front of the mine on Sept. 11, 2019. (David Calvert/The Nevada Independent)

Pauly is not confident that the cleanup will be as thorough as it would have been under EPA control. In the end, she thinks big interests overpowered what was right for the environment.

"The big guys are going to do what they're going to do,” she said.

Frustrated but not surprised, Pauly was rarely the most popular person in the room. She recalls that in 2005, although many neighbors privately supported her, there was a sense that no one wanted to hear her warnings. She was perceived as the “crazy mine lady” and people would “cuss” at her when she was at the store with her daughters. They’d tell her to move to Zephyr Cove. Today Pauly laughs off the idea that she could be branded as a radical enviro-hippie.

“My husband was a pastor,” she said. “I’m just a little Christian housewife.”

During that time, the state was dealing with a difficult situation on the ground. 

In 2004, Leo Drozdoff was the acting administrator of the division. When Arimetco walked off the site in 2000, he said state officials had to deal with a “remarkable” amount of uncontrolled water. After the emergency stabilization of the mine, the cleanup began and the agency found itself caught navigating through a polarized community and bickering with the BLM and the EPA.

“You had a three-headed monster trying to manage the site and there was a fair amount of distrust all around," Drozdoff said in an interview, describing the interagency turf war in 2004.

Later that year, the state decided to hand over control of the cleanup to the EPA. Looking back, Drozdoff wonders whether making that decision earlier could have created less angst, and he said that he regretted not pushing EPA and the company to move faster in the following years. 

But he said “the state has grown up,” pointing to the division’s increased staff. 

The construction that began in late August follows a typical mine closure, a task with which Nevada regulators have extensive experience. The more controversial decision facing the state is what to do about the groundwater plume. When the mine was under EPA control, Drozdoff said the state was often frustrated by the lack of attention spent on addressing groundwater. 

Now it’s the state's turn.

“They may now have that responsibility to do that work that they were frustrated about in the past,” he said. “They are going to have to complete studies and make some decisions based on those studies and then communicate it to the public. That's what they need to do.”

Update: This story was updated at 11:25 a.m. on Sept. 24, 2019 to indicate that the EPA will not sign off on the state's action plan to clean the site.