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Office of Administrative Hearings 1400 West Washington, Suite 101
Phoenix, Arizona 85007 (602) 542-9826
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
THE TOWN OF FLORENCE, a political subdivision of the State of Arizona; SWVP-GTIS MR, LLC, a Delaware limited liability company; JOHNSON UTILITIES, LLC, an Arizona limited liability corporation; and PULTE HOME CORPORATION, a Michigan corporation, Appellants, vs. ARIZONA DEPARTMENT OF ENVIRONMENTAL QUALITY, Respondent, FLORENCE COPPER INC., a Nevada corporation, Intervenor.
No. 12-005-WQAB
ADMINISTRATIVE LAW JUDGE DECISION
HEARING DATES: March 18, 2014, at 9:00 a.m.; March 19, 2014, at 9:00 a.m.;
March 20, 2014, at 9:00 a.m.; March 21, 2014, at 9:00 a.m.; March 24, 2014, at 9:00
a.m.; March 25, 2014, at 9:00 a.m.; March 26, 2014, at 9:00 a.m.; March 27, 2014, at
9:00 a.m.; March 28, 2014, at 8:45 a.m.; March 31, 2014, at 8:45 a.m.; April 1, 2014, at
8:45 a.m.; April 2, 2014, at 8:45 a.m.; April 3, 2014, at 8:45 a.m.; April 4, 2014, at 8:45
a.m.; April 7, 2014, at 8:45 a.m.; April 8, 2014, at 8:45 a.m.; April 9, 2014, at 8:45 a.m.;
April 11, 2014, at 9:00 a.m.; April 14, 2014, at 8:45 a.m.; April 15, 2014, at 8:45 a.m.;
April 16, 2014, at 8:45 a.m.; April 17, 2014, at 8:45 a.m.; April 18, 2014, at 8:45 a.m.;
April 21, 2014, at 8:45 a.m.; April 22, 2014, at 1:00 p.m.; April 23, 2014, at 9:00 a.m.;
April 24, 2014, at 8:45 a.m.; April 25, 2014, at 1:00 p.m.; April 28, 2014, at 8:45 a.m.;
April 29, 2014, at 1:00 p.m.; April 30, 2014, at 1:00 p.m.; May 5, 2014, at 8:45 a.m.; May
6, 2014, at 9:00 a.m.; and May 7, 2014, at 8:45 a.m.; the record was held open until
September 8, 2014, to allow the parties to submit post-hearing memoranda.
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APPEARANCES: Appellants the Town of Florence, SWVP-GTIS MR, LLC,
Johnson Utilities, LLC, and Pulte Home Corporation were represented at prehearing
conferences, in legal briefing, and/or at the hearing by Larry J. Crown, Esq., Janis L.
Bladine, Esq., Russell R. Yurk, Esq., Ronnie P. Hawks, Esq., and Christopher R.
Stovall, Esq., Jennings, Haug & Cunningham, LLP.
Appellant the Town of Florence was also represented at prehearing conferences
by James E. Mannato, Esq., Florence Town Attorney.
Appellant Johnson Utilities, LLC was also represented at prehearing conferences
by Christopher D. Thomas, Esq., Peter W. Culp, Esq., and Fred E. Breedlove, III, Esq.,
Squire Sanders, LLP.
Appellant Pulte Home Corporation was represented at prehearing conferences
and at the hearing by D. Christopher Ward, Esq., Pulte Home Corporation.
Respondent Arizona Department of Environmental Quality was represented at
prehearing conferences, in legal briefing, and at the hearing by John T. Hestand, Esq.,
Office of the Arizona Attorney General.
Intervenor Florence Copper Inc. was represented at prehearing conferences, in
legal briefing, and/or at the hearing by D. Lee Decker, Esq. and Bradley J. Glass, Esq.,
Gallagher and Kennedy, PA; by Colin F. Campbell, Esq., Maureen Beyers, Esq., and
Shane M. Hamm, Esq., Osborn Maledon, PA; and by Rita Pearson Maguire, Esq.,
Florence Copper Inc.’s General Counsel.
ADMINISTRATIVE LAW JUDGE: Diane Mihalsky ________________________________________________________________
FINDINGS OF FACT1
1 Procedure
1. On or about March 6, 2012, Curis Resources (Arizona) Inc. (“Curis”) filed an
application for a Temporary Individual Aquifer Protection Permit (“APP”)2 to the Arizona
Department of Environmental Quality (“ADEQ”) for a Production Test Facility (“PTF”) at
1 For the convenience of the Water Quality Appeals Board, the parties, and the public, a table of contents follows the text of this decision at page 153. 2 For the convenience of the Water Quality Appeals Board, the parties, and the public, a summary of the various acronyms used in this decision follows the text of this decision at page 146.
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Florence, Arizona to develop data for an APP application for a full-scale in-situ leach
(“ISL”) copper/in-situ copper recovery (“ISCR”) commercial mine. See ADEQ-1.
2. Following final review, on July 3, 2013, ADEQ issued Temporary APP No. P-
106360 Other Amendment (“the Temporary APP”) for the PTF to Curis pursuant to A.A.C.
R18-9-A210(A)(1). See ADEQ-7.
3. On or about August 2, 2013, the Town of Florence (“the Town”), SWVP-GTIS
MR, LLC (“SWVP”), Johnson Utilities, LLC (“Johnson”), and Pulte Home Corporation
(“Pulte”) filed an Amended Notice of Appeal with the Water Quality Appeals Board (“the
Board”) to appeal ADEQ’s issuance of the Temporary APP to Curis. The Town, SWVP,
Johnson, and Pulte collectively are referred to as “Appellants.”
4. Curis intervened in Appellants’ appeal.
5. The Board referred Appellants’ appeal to the Office of Administrative Hearings
(“OAH”), an independent state agency, for an evidentiary hearing.
6. After the matter was referred to OAH, Curis became Florence Copper Inc.
(“FCI”). The Administrative Law Judge assigned to the matter (“the ALJ”) amended the
caption to show FCI as the intervenor.3 Because for all intents and purposes, Curis and
FCI are the same party, henceforth in this decision, Curis and FCI will be referred to as
“FCI.”
7. On or about October 28, 2013, the ALJ signed SWVP’s subpoena duces tecum
to FCI for all the documents generated by BHP Copper Inc. (“BHP”) regarding a pilot
project that BHP had conducted for ISL copper mining between 1997 and 1998 on land
near FCI’s permitted PTF. The ALJ subsequently denied FCI’s motion to quash the
subpoena duces tecum4 and because the volume of documents from BHP’s pilot project
required that Appellants be given additional time to prepare for the hearing, the ALJ
continued the evidentiary hearing until March 18, 2014.5
8. Between March 18, 2014, and May 7, 2014, the ALJ conducted 34 days of
evidentiary hearing.
3 On or about February 3, 2014, ADEQ made a minor amendment to the Temporary APP changing the name of the PTF and the name of the owner of the PTF from Curis to FCI. 4 See Case Management Order No. 10. 5 See Case Management Order No. 13.
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9. Appellants presented the testimony of nine witnesses: (1) Tom Rankin, the
Mayor of the Town; (2) Mark Eckhoff, the Community Director for the Town; (3) Wayne J.
Costa, P.E., the Public Works Director and Engineer for the Town; (4) Daniel Hodges,
Johnson’s Vice President in charge of regulatory issues; (5) Gregory H. Brown (“Mr. G.
Brown”), a chemical engineer who is currently Johnson’s Director of Engineering/Vice
President; (6) Justin Merritt, a Land Acquisition Specialist employed by SWVP, who on its
behalf performed the due diligence to purchase land near the PTF; (7) Michael Bradley
(“Brad”) Schoenberg, Pulte’s Vice President for Construction Operations for the State of
Arizona; (8) Kevin Hebert, a registered geologist in Arizona employed by Southwest
Ground-water Consultants, Inc. (“Southwest”), which provided modeling and other
services to Appellants and their expert; and (9) Lee Wilson, Ph.D., a professional
hydrogeologist certified by the American Institute of Hydrogeology who testified as
Appellants’ expert.6 Appellants also submitted into evidence 112 exhibits.
10. ADEQ presented the testimony of six witnesses: (1) Jerry Smit, the Manager
of ADEQ’s Groundwater Section; (2) Jennifer Widlowski, a Hydrologist III employed by
ADEQ, who reviewed FCI’s application for the Temporary APP; (3) Halevy (“Hal”) Hong,
an Audit Supervisor for ADEQ, who reviewed and approved FCI’s performance bond for
the PTF; (4) Mason Bolitho, who formerly was employed by ADEQ as a senior hydrologist
and reviewed FCI’s groundwater modeling for the Temporary APP; (5) Jeffrey Bryan, an
environmental engineer employed by ADEQ, who reviewed FCI’s application for the
Temporary APP for compliance with Best Available Demonstrated Control Technology
(“BADCT”); and (6) Richard Mendolia, an Environmental Program Specialist employed by
6 Dr. Wilson’s resumé was submitted as SWVP-429. ADEQ and FCI challenged Dr. Wilson’s qualifications because he is not certified in Arizona as a geologist or engineer under A.R.S. § 32-121. Arizona does not regulate professional hydrologists or hydrogeologists. ADEQ and FCI did not challenge Dr. Wilson’s educational or professional credentials to give expert opinions on hydrology and hydrogeology. Although it is unlawful in Arizona for a nonregistrant engineer or geologist to seal a document, see A.R.S. § 32-125(D), it is permissible for “a person who is qualified by knowledge, skill, experience, training or education to express an opinion regarding a licensed professional’s standard of care or liability for the claim,” A.R.S. § 12-2601(2), regardless of whether the expert is certified. Because the ALJ found all expert and technical witnesses to be competent and well-qualified, she does not discuss any of the witnesses’ qualifications at length. This recommended decision is not based on the technical witnesses’ qualifications, but on the weight of the evidence, including factual and expert testimony, that the parties submitted and applicable law.
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ADEQ and the project manager who reviewed FCI’s application for the Temporary APP.
ADEQ also submitted 14 exhibits.
11. FCI presented the testimony of eight witnesses: (1) John T. Kline, the former
project manager for BHP during its pilot project, who also provided consulting services to
FCI when it prepared the application for the Temporary APP;7 (2) Daniel (“Dan”) Johnson,
FCI’s Vice President/General Manager, who was in charge of submitting the application
for the Temporary APP and will oversee the operation of the PTF; (3) Jeff Tannler, the
Active Management Area (“AMA”) Director for the Arizona Department of Water
Resources (“ADWR”); (4) Andrew Craddock, a Water Resources Specialist employed by
ADWR as the Manager of the Assured Water Supply and Recharge Programs; (5)
Terrence McNulty, P.E., a metallurgical engineer who is performing mineral processing
and chemical engineering consulting services for FCI for the PTF;8 (6) Mark Nicholls, a
Lead Hydrologist for Haley & Aldrich, who was formerly employed by Brown and Caldwell,
the two hydrogeology consulting firms whom FCI employed to help prepare the
application for the Temporary APP;9 (7) Philip J. Lagas, a principal of Haley & Aldrich who
also worked on the application for the Temporary APP;10 and (8) Adrian Brown (“Mr.
Brown”), a registered engineer and hydrologist, who testified as FCI’s expert.11 FCI also
submitted 49 exhibits.
12. Appellants’ Amended Notice of Appeal included 92 enumerated issues,
including one issue that had seven subparts. The ALJ granted FCI’s motion to dismiss
Appellants’ argument that ADEQ had exceeded its authority under A.R.S. § 49-203(4) by
promulgating A.A.C. R18-9-A210, which authorizes ADEQ to grant Temporary APPs for
pilot projects, based on the Maricopa County Superior Court’s dismissal of a lawsuit in
which SWVP had made the same claim, but allowed Appellants to present evidence to
attempt to establish that ADEQ did not comply with the regulation’s requirements.12 On
7 Mr. Kline’s CV is FC-27. 8 Dr. McNulty’s CV is FC-26. 9 Mr. Nicholls’ CV is FC-14. 10 Mr. Lagas’ CV is FC-13. 11 Mr. Brown’s CV is FC-12. Mr. Brown stamped his initial and supplemental expert reports as a registered engineer in Arizona. 12 See Case Management Order No. 9.
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April 29, 2014, Appellants withdrew 20 additional issues and limited one other issue.13 On
June 30, 2014, Appellants withdrew another 18 issues.14 The ALJ summarizes and
addresses the remaining 58 issues, including subparts, below.15
2 Background
2.1 Geological and hydrological history near the PTF site
13. The Town and surrounding area lie in the basin and range geology of
southern and western Arizona. The basin and range overlay consists of alluvial
deposits surrounded by mountain ranges. The basin bedrock complex forms a structure
like a sink that holds groundwater. Because Poston Butte is located northeast of the
copper ore body that FCI seeks to mine, it is known as the “Poston Butte deposit.”
14. Beneath the alluvial vadose zone, the aquifer beneath the Town and the
PTF consists of four layers: (1) the Upper Basin Fill Unit (“UBFU”), directly beneath the
vadose zone that consists of sands, gravel, and other permeable materials; (2) the
Middle Fine-Grained Unit (“MFGU”), a much less permeable layer made of fine-grained
clay; (3) the Lower Basin Fill Unit (“LBFU”), between the MFGU and oxide zone that
consists of cobbles, gravel, boulders, and coarser sediment than the UBFU; and (4) the
oxide unit, including sulfide bedrock, where the copper ore body is located.
15. Faults in the bedrock complex, or horst and graben rock bodies, are moving
up and down in opposite directions. The faults and fractures in the bedrock in the oxide
zone allow groundwater to flow through the rock. The land over the Poston Butte
deposit includes 160 acres of Arizona state trust land that is held in trust and managed
by the Arizona State Land Department (“ASLD”) for the sole purpose of generating
revenues for the 13 state trust land beneficiaries, the largest of which is Arizona’s K-12
public education.
16. The PTF well field will occupy approximately 2.2 acres on the west side of
the state trust land. See ADEQ-1 at 601.16 Directly to the west of the PTF well field, the
13 See Document No. 108 on Electronic Record. 14 See Document No. 119 on Electronic Record. 15 Appellants’ statement of their remaining 58 appeal issues follows the text of this decision at page 147. The ALJ references parenthetically after the headings in the Findings of Fact the appeal issue(s) to which the evidence summarized in the section relate(s). Some evidence relates to more than one issue.
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bedrock slopes down due to a fault. See SWVP-792 at 3. Due to the slope, the alluvial
fill beneath the well field is thinner than in the area to the west. See SWVP-792 at 4.
The copper ore body is located on the west side of the slope of the bedrock. See
SWVP-792 at 5.
17. The Poston Butte deposit was first discovered in 1969, and was extensively
explored and evaluated from 1970 through 1977, by the Continental Oil Company
(“Conoco”). A large number of core holes reflect exploration of the Poston Butte copper
deposit beginning with Conoco’s explorations in 1970. See SWVP-792 at 11. Although
Conoco considered an open pit mine, the 400-foot overburden was too great to reach
copper that was not very high grade. Although Conoco tried shaft mining, because the
ore body is located in the aquifer, substantial dewatering would be necessary. Neither
open-pit nor shaft mining is an economical method to mine the Poston Butte deposit.
2.2 BHP’s pilot project and the subsequent sale of its land to various entities
18. Conoco sold the property that included the Poston Butte deposit to Magma
Copper Company in 1992. Magma Copper owned the site, as well as thousands of
acres surrounding it, from 1992 to 1996. Magma Copper was acquired by BHP in 1996.
19. In addition to purchasing land that included and surrounded the Poston
Butte deposit, BHP entered into a lease with ASLD for the mineral rights to the portion
of the Poston Butte deposit that lay beneath the state trust land.
20. On or about June 6, 1997, BHP obtained APP No. P-101704 from ADEQ to
conduct a full-scale commercial ISL copper mine on approximately 216 acres over the
Poston Butte deposit, including the state trust land, for the duration of the life of the
facility.
21. BHP also acquired an Underground Injection Control (“UIC”) permit from the
United States Environmental Protection Agency (“USEPA”) to perform ISL mining in an
underground source of drinking water. USEPA granted BHP an aquifer exemption that
prohibited production wells from being drilled into the part of the aquifer where ISL
operations would be conducted.
16 All citations to pages in exhibits refer to the pdf pages. These exhibits may be viewed at document 69a on OAH’s electronic record for this matter at https://portal.azoah.com/oedf/documents/12-005-WQAB/OmnibusindexAandV.html .
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22. The first stage of BHP’s permitted commercial mine was a pilot project on
approximately two acres that BHP owned. For approximately 90 days between the end
of October 1997, and February 1998, BHP conducted active injection as part of a pilot
project to test the viability of a full-scale commercial mine.
23. Although BHP had planned to conduct the pilot project for a longer time, in
February 1998, BHP ceased injection, commenced restoration activities, and
abandoned the full-scale commercial mine of the Poston Butte deposit.
24. As part of the permitted pilot project and full-scale commercial mine, BHP
constructed at least 20 Point of Compliance (“POC”)17 wells, including at least six on the
state trust land, pursuant to APP No. P-101704 from ADEQ and BHP’s lease with
ASLD.
25. In 2000, after BHP abandoned the commercial mine, it sold all of the
approximately 7,000 acres that it owned, including the land over and surrounding the
Poston Butte deposit, to various companies controlled by Harrison Merrill (collectively
“Merrill Mining”).
26. The land that BHP sold to Merrill Mining subsequently went into foreclosure.
In December 2009, FCI bought 1,182 acres from Peoples Bank and in February 2010,
obtained an assignment of the mineral lease for the state trust land.
27. In November 2010, FCI requested that ADEQ amend Individual APP No. P-
101704 to transfer the permit from BHP to FCI. ADEQ subsequently transferred APP
No. P-101704 to FCI.
28. In January 2011, FCI requested that ADEQ amend Individual APP No. P-
101704 to make certain technical and substantive changes (“significant amendment”).
The significant amendment sought to split operations into two phases, with Phase 1
being another pilot project and Phase 2 being the full-scale commercial mine.
29. On March 25, 2011, FCI filed an application with USEPA to transfer BHP’s
UIC Permit from BHP to FCI with amendments. See SWVP-264.
17 “The point of compliance is the point at which compliance with aquifer water quality standards [(“AWQS”)] shall be determined.” A.R.S. § 49-244.
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30. USEPA subsequently18 announced its intention to revoke and reissue the
UIC Permit for the following reasons:
In addition to the information submitted by [FCI], [USEPA] has also considered the recent residential development (i.e., Anthem at Merrill Ranch) in the near vicinity of the area currently permitted for mining activity and the construction of several nearby drinking water production wells since the permit was issued in 1997. Due to the substantial lapse in time since the existing permit was issued, the absence of any permitted activity at the site over the last ten years, and the new information regarding residential development in the area, [USEPA] has decided that revoking and reissuing the permit is appropriate. Pursuant to the administrative procedures at 40 C.F.R. § 124.5(c)(2), when a permit is revoked and reissued, the entire permit is reopened just as if the permit had expired and was being reissued. Any activity at the mine site must adhere to the terms and conditions of the existing permit until the revocation and reissuance process is complete.
FC-59 at 1.
31. By letter dated September 7, 2011, ADEQ asked FCI to respond to three
enumerated facility deficiencies, 78 enumerated hydrological deficiencies, including 12
deficiencies that included a total of 86 subparts, two enumerated general comments,
and eight enumerated engineering comments regarding the application for a significant
amendment to APP No. P-101704. See SWVP-310.
32. On December 20, 2011, FCI requested that ADEQ suspend the application
for significant amendment to APP No. P-101704 so that FCI could file a separate
application for a temporary APP to operate a pilot test facility on the state trust land.
33. As noted above, on March 12, 2012, FCI submitted the application for an
individual Temporary APP to build the PTF on the state trust land. The permit
application had over 1,600 pages in four volumes and nine attachments. Subsequently,
ADEQ issued two letters to FCI to request additional information for the Temporary APP
and FCI twice responded to ADEQ’s requests. See ADEQ-3 and ADEQ-5.
34. On September 28, 2012, ADEQ initially issued the Temporary APP to FCI.
18 The handwritten date on USEPA’s letter was 8/5/2010. See FC-59 at 2. This date appears to be an error.
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35. ADEQ held a period of public comment from October 25, 2012, to January
22, 2013, on the Temporary APP. As part of the public comment process, an open
house was held at Florence High School on December 5, 2012, and comments were
submitted. ADEQ received extensive comments during the public comment period for
the Temporary APP.
36. On July 5, 2013, ADEQ published its responses to all the public comments
that it had received during the public comment period. See ADEQ-10.
37. ADEQ made additional changes to the Temporary APP in response to
public comments. As noted above, on July 3, 2013, ADEQ issued an Other
Amendment, finalizing Temporary APP No. P-106360 to FCI for the PTF. See ADEQ-7.
The July 3, 2013 Temporary APP incorporated the information in FCI’s application, stating
that “[t]he terms and conditions set forth in this permit have been developed based on
[FCI’s] Application for Temporary Individual [APP], dated March 12, 2012, Public File No.
P-106360.” ADEQ-7 at 42 § 5.0.
2.3 Other development and water use history near the PTF site
38. The Town was founded in 1866. Before 1980, the Town was primarily
comprised of its historic downtown, located 2½ square miles west of Arizona State
Route 79 and 2½ miles southeast of the state trust land, and Florence Gardens, a
subdivision located approximately 3 miles northeast of the state trust land. See TOF-3.
39. In 1980, the Town embarked on an aggressive policy of annexation,
beginning with the state prisons and an Immigration Customs and Enforcement facility.
40. Pulte is one of the largest home builders in the United States. In 2004,
Pulte closed escrow on the sale of 3,000 acres on the west side of Merrill Mining’s
property, approximately 1½ miles to the north and west of the state trust land, to
develop the Anthem at Merrill Ranch subdivision. Shortly thereafter, the Town annexed
the land on which Pulte intended to develop Anthem at Merrill Ranch.
41. Anthem at Merrill Ranch is intended to replicate Pulte’s successful Anthem
development north of Phoenix and will have 7,000 lots when it is built out, with an
expected population of between 25,000 and 30,000 residents. Mr. Schoenberg testified
that as of the dates of hearing, Pulte had sold approximately 2,000 lots in Anthem at
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Merrill Ranch and that Pulte has invested hundreds of millions of dollars for
infrastructure and community amenities at Anthem at Merrill Ranch.
42. Because the Town did not have the infrastructure to provide drinking water
to Anthem at Merrill Ranch, Pulte contracted with Johnson to provide drinking water.
Johnson provides drinking water to numerous developments in northwest Pinal County
and southeast Maricopa County.
43. The Town annexed the rest of the 7,000 acres that Merrill Mining formerly
owned that had gone into foreclosure, including the land that FCI later purchased from
Peoples Bank. See TOF-3. In 2007, the Town adopted zoning for the annexed area to
be primarily residential. Mr. Eckhoff testified that most of the recent and pending
annexations are for master-planned residential communities with supporting commercial
and employment uses.
44. SWVP is a large real estate investment firm. In 2009, SWVP submitted a
bid to Peoples Bank to purchase 5,700 acres, including the land subsequently
purchased by FCI. The bid was not accepted, but SWVP subsequently purchased
4,500 acres in three parcels. SWVP intends to develop and/or sell the land as
residential to developers and builders. When it purchased the 4,500 acres, SWVP did
not know that FCI was bidding on any portion of the land or that it intended to conduct
mining operations in the Town because Peoples Bank conducted a sealed bidding
process.
45. In 2010, the Town’s voters approved the 2020 general plan that prohibited
mining within the Town’s corporate limits. Mayor Rankin was elected on an anti-mining
platform.
46. Mr. Johnson testified that the aquifer is alkaline, or hard, and that farmers in
the area use sulfuric acid to decrease the pH of the soil, which is basic due to high
evaporation rates in the desert. Mr. Johnson testified that farmers apply a solution that is
between 93% and 96% sulfuric acid. Mr. Johnson testified that during the permitting
process for the FCI’s ISL copper mine, the Town passed an ordinance that prohibited
storage of sulfuric acid, except for agriculture.
47. The Town’s 2020 general plan and municipal ordinances do not apply to the
state trust land where FCI intends to construct and operate the PTF. Although the state
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trust land is surrounded by land that is within the Town’s corporate limits, most of the
land around the PTF site presently is undeveloped or agricultural.
48. FCI sponsored several professors and graduate students at Arizona State
University’s business school to prepare a study of the projected economic impact of the
commercial mine on the local economy. See FC-7. The conclusion of the study was that
the commercial mine would generate at least at least $2 billion in revenue to the State of
Arizona, as well as substantial property and sales taxes to Pinal County and the Town.
FCI’s witnesses testified that the costs of the PTF vastly exceeded the value of the copper
that FCI expected to recover during the PTF.
49. Mr. Johnson testified that FCI has tried to be transparent to all stakeholders in
its applications for mining permits. Mr. Johnson testified that he does not believe that
most residents of Florence oppose the PTF because independent surveys show that most
residents support the project. Mr. Johnson testified that Florence has many sand and
gravel and other mines within its corporate limits and has been known as a mining area
since the early 1900s. See FC-64, FC-63, FC-65, and SWVP-800.
50. Mr. Johnson acknowledged that no other copper deposits or mines are
located within the Town’s corporate limits.
51. The Town currently has 25,000 residents, including 14,000 or 15,000
prisoners. Mayor Rankin estimates that in 20 or 30 years, the Town will grow to
250,000 residents. Because the Town is located midway between Phoenix and Tucson,
it is ideally situated to become part of the Sun Corridor megapolitan growth area that is
anticipated to develop between Tucson and Prescott.
52. ADWR requires an assured 100-year supply of water before land may be
plotted and developed in Arizona. The Town is in an AMA that requires that
groundwater be managed for a safe yield, meaning that no more groundwater can be
withdrawn than is replaced. ADWR has determined that the Town and Johnson have
demonstrated assured water supplies that exceed their current needs. See FC-61, FC-
62, FC-66, FC-67, FC-68, and FC-69.
53. Drinking water that a municipality or water utility provides to customers must
comply with primary Maximum Contaminant Levels (“MCLs”) under the federal Safe
Drinking Water Act for certain substances, including arsenic and nitrate.
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54. The federal MCL for arsenic is 10 parts per billion (“ppb”). The federal MCL
for nitrate is 10 parts per million (“ppm”). If water exceeds primary MCLs, it must be
treated before it can legally be provided to water customers. If treatment is necessary
to meet federal MCLs, municipalities and water utilities must pass the cost of treatment
on to their customers.
55. USEPA has adopted secondary MCLs for substances that do not threaten
human health, but affect the taste or odor of drinking water and make it unpalatable.
Although sulfate does not threaten human health, it makes water taste and smell like
rotten eggs and in large quantities, acts as a laxative. The federal secondary MCL for
sulfate is 250 ppm. Although USEPA has adopted secondary MCLs, it has no legal
authority to enforce them.
56. Mr. Costa and Mr. Hodges testified that Johnson’s and the Town’s drinking
water wells draw water from the LBFU. The LBFU provides good quality drinking water
that does not require any treatment, except a little chlorine to disinfect it.
57. According to ADWR’s records, Johnson’s closest existing well to the PTF is
2¼ miles downgradient from the PTF well field. All of the Town’s existing wells are
upgradient from the PTF site.
58. Dr. Wilson acknowledged that the scale of FCI’s PTF is too small and its
expected duration is too short for pollutants from the PTF to adversely affect Johnson’s
or the Town’s existing wells.
2.4 History of ISCR mining in Arizona and elsewhere and ADEQ’s past practices
59. Dr. Wilson testified that he is not aware of any ISCR mine in the world that
was commercially successful.
60. Mr. Kline testified that between 1987 and 1995, he managed plant
operations at the Cypress Tohono in-situ dry ore mine in which solution was injected
into broken material and pumped out. Mr. Kline testified that BHP successfully
performed in-situ mining at Miami since 1947, and at San Manuel for 10 years.
61. Mr. Kline testified that hydraulic control was not an issue at the Cypress
Tohono, the Miami East, and the San Manuel mines because they had a well sink. Mr.
Kline acknowledged that unlike the Florence projects, these mines were not located in
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aquifers. Mr. Kline testified that the ore body at the Florence mine was the only
saturated copper ore body that he had ever seen, which made it ideal for in-situ
leaching.
62. Mr. Smit acknowledged that no other ISL copper mines in Arizona involved
injection of lixiviant into an aquifer, other than BHP’s commercial project and the PTF. Mr.
Smit acknowledged that issuance of the Temporary APP for the PTF was a novel
experience for ADEQ.
3 Evidence on appeal issues
3.1 The Temporary APP’s compliance with A.A.C. R18-9-A210
3.1.1 The initial one-year term and the permissive one-time renewal (appeal issues 4(b), 5, 8, and 9)
63. A.A.C. R18-9-A210(E) provides that “[a] temporary individual permit expires
after one year unless it is renewed. [ADEQ] may renew a temporary individual permit
no more than one time.” According to the Temporary APP, FCI “proposes to construct
and operate the PTF over a two-year period, estimated to include an approximate 14
month leaching phase and a 9-month mine block rinsing phase.” ADEQ-7 at 2.
64. Ms. Widlowski testified that if FCI did not complete restoration within two
years under Temporary APP No. 106360, restoration requirements would be rolled into
the existing life-of-facility permit, APP No. P-101704. Ms. Widlowski testified that FCI’s
life-of-facility permit would require it to take contingency action indefinitely into the future if
any exceedances were discovered at POC wells.
3.1.2 Proof-of-concept requirements (appeal issues 1, 4(a), 4(c) 4(d), 4(e), 4(f), 4(g), 43, 72, and 76)
65. Dr. Wilson cited four reasons why proof of concept was important in
evaluating the Temporary APP for the PTF: (1) A.A.C. R18-9-A210(A)(1) allows a person
to apply for a temporary individual APP for “[a] pilot project to develop data for an [APP]
application for the full-scale project”; (2) FCI’s December 20, 2011 letter in response to
ADEQ’s notice of deficiencies in the application for a significant amendment stated that
“[the PTF] will allow for development of data to respond to ADEQ’s request for additional
information dated September 7, 2011,” SWVP-323 at 1; (3) FCI’s application for the
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Temporary APP stated that one purpose of the PTF was to develop data for the pending
APP application for commercial-scale ISCR operations, see ADEQ-1 at 65 § 2.2; and (4)
The Temporary APP stated that the PTF “shall provide sufficient data to assess and
develop a full-scale in-situ mining operation,” ADEQ-7 at 2 § 2.1.
66. Dr. Wilson described the differences in scale between the PTF and the
commercial mine. The PTF will inject up to 240 gallons per minute (“gpm”) of lixiviant for
14 months. The commercial mine will inject up to 11,000 gpm of lixiviant for 25 years.
Although both the PTF and the commercial mine will use some variation of a 5-spot
pattern, in which injection wells are surrounded by recovery wells, the PTF was much
smaller than the commercial mine. See SWVP-792 at 88 (incorporating information at
FC-18 from 189 and ADEQ-1 at 89). Dr. Wilson testified that because the PTF was a
stand-alone project, it needed to produce data that could be scaled up to the commercial
mine.
67. Dr. Wilson testified that in the commercial mine, the mine blocks would be
contiguous and that contiguous blocks would be mined sequentially. See SWVP-792 at
89-110; FC-18 at 90-91. Dr. Wilson testified that the commercial mine’s approach to
water balance was very different from the PTF’s approach. In the PTF, FCI must pump
more fluid out than it injects. In contrast, the commercial mine will balance pumping with
injection by keeping the two amounts equal in the well field, but maintaining hydraulic
control through perimeter wells. See FC-18 at 180. Dr. Wilson testified that ADEQ
needed data from the PTF to demonstrate whether the perimeter wells will work at the
commercial mine.
68. Mr. Nicholls noted that Dr. Wilson had compared water balance in the PTF,
where excess water would be pumped from the mine block, and water balance in the
commercial mine, where excess water would be pumped from the perimeter. See SWVP-
792 at 111, 112. Mr. Nicholls did not see any difference between water balances in the
PTF and in the commercial mine because the PTF had scaled components of the
commercial mine. Mr. Nicholls testified that the same principles of hydraulic control
applied to the PTF and the commercial mine.
69. Dr. Wilson stated that it was not reasonable for ADEQ to spend less time on
the APP for the 2.2-acre PTF than it would spend on a 2,000-acre commercial mine
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because the smaller project was designed to resolve uncertainties in the larger project.
Dr. Wilson opined that because the PTF was an experiment, ADEQ needed to understand
the outcome of the PTF before considering the larger commercial mine.
70. Dr. Wilson acknowledged that while the information necessary for FCI to
respond to ADEQ’s request for information on the substantial amendment to APP No. P-
101704 could come from the PTF, information also could come from other sources. Dr.
Wilson also acknowledged that by granting the Temporary APP for the PTF, ADEQ did
not commit to granting or denying the significant amendment to the life-of-facility APP.
Nonetheless, Dr. Wilson insisted that ADEQ should address the obvious gaps in the
Temporary APP so that the parties were not debating the same uncertainties when FCI
reapplied for a significant amendment to the life-of-facility APP.
71. Mr. Johnson testified that FCI did not know what the results of the PTF would
be, but that the PTF was designed to collect necessary data to show whether a
commercial facility was viable. Mr. Johnson testified that the Temporary APP does not
require that the PTF produce what Dr. Wilson called data necessary to establish proof of
concept; however, numerous sections of the Temporary APP required data collection and
monitoring. Mr. Johnson testified that the Temporary APP is much more comprehensive
than other permits that he has worked under.
72. Mr. Nicholls testified that FCI’s PTF included a solvent extraction and
electrowinning (“SX/EW”) plant that would be used to manufacture lixiviant and recycle
raffinate, rather than importing it. This feature is more similar to the commercial mine,
although the scale of the PTF is much smaller. FCI expects to gather sufficient data to
support its application for a significant amendment to the commercial permit. Mr. Nicholls
testified that the term, “proof of concept,” is used for engineering studies, not APPs. Mr.
Nicholls testified that the PTF would provide monitoring and both operational and
compliance data and that FCI would not attempt the commercial mine if the PTF was not
successful.
73. Mr. Smit testified that ADEQ will not restrict FCI to providing information only
from the PTF to support the significant amendment to the life-of-facility APP for the
commercial mine. Mr. Smit explained that because ADEQ does not have the authority
under APP statutes to unilaterally determine whether a PTF will or will not produce useful
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information, ADEQ is not concerned that the PTF may not produce useful information.
Mr. Smit stated that FCI may include additional data or analysis in addition to data from
the PTF in its next application for a significant amendment to the commercial permit.
74. Ms. Widlowski testified that although ADEQ issued the Temporary APP to
help FCI address ADEQ’s requests for information to support the significant
amendment, FCI could obtain information from other sources. Ms. Widlowski stated
that if after the PTF, FCI’s information was still insufficient, ADEQ will deny the
application for a significant amendment.
75. Dr. Wilson testified that everyone expected residential growth in the area,
including on FCI’s property. Dr. Wilson testified that he did not expect the PTF to have a
major effect on the area, but that he thought that the purpose of the PTF was to support
the commercial permit. Dr. Wilson did not think that ADEQ’s attitude that gaps in data
were FCI’s problem was acceptable. Dr. Wilson believed that the purpose of the PTF was
to prove that ISL mining was environmentally sound, as well as economically viable.
76. Dr. Wilson noted that ADEQ in its response to public comments had
acknowledged that at least part of the purpose of the PTF was to provide data to
establish proof of concept of the commercial mine:
ADEQ believes there is sufficient monitoring in the permit to verify data assumptions, eliminate uncertainties and detect excursions of mining solutions. Quarterly PTF Operational and Monitoring Reports will be submitted in accordance with Section 2.7.4.4. ADEQ considers the data provided in the Quarterly Reports as a proof-of-concept validation (PTF system performance, groundwater gradient information, groundwater sampling and monitoring well sampling data, etc.) throughout the PTF monitoring period, in addition to a PTF Summary Report required at the cessation of rinsing.
SWVP-832 at 29 (quoting ADEQ-10 at 189 (emphasis in original)). Dr. Wilson opined
that although at the hearing, ADEQ’s witnesses stated that proof of concept was not
important, earlier ADEQ had taken the position that the Temporary APP required
sufficient monitoring to verify assumptions and to identify excursions of solution at the
PTF and that the PTF would produce data that ADEQ could consider if FCI renewed its
application for the significant amendment.
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3.2 FCI’s financial assurance mechanism under A.A.C. R18-9-A201(B) and A.A.C. R18-9-A203 (appeal issues 13, 14, and 76)
77. Appellants did not present any evidence at the hearing to challenge FCI’s
cost estimates for construction, operation, and closure of the PTF or the amount of
FCI’s bond for closure costs.
78. Mr. Hong testified that he reviewed FCI’s performance bond for the PTF and
determined that it met the requirements of A.A.C. R18-9-A203. See ADEQ-14. Mr. Hong
testified that the initial amount of the surety bond was $3,487,076. In the revised
Temporary APP, the amount was raised to $3,487,743. See ADEQ-6 at 10 § 2.1.
79. Mr. Bryan noted that A.A.C. R18-9-A203(B)(3) requires an applicant to submit
a financial mechanism to cover closure and post-closure costs, not its costs of
construction or operation. Mr. Bryan explained that FCI is required to obtain a bond to
cover closure costs in the event that FCI abandons the PTF.
80. In their post-hearing legal memorandum, Appellants argued that the surety
bond’s multiple cancellation provisions violated A.A.C. R18-9-A203(C)(2), that the bond
used many ambiguous and inconsistent terms in place of the term of art, “penal
amount,” and that the bond failed to cover construction, operation, and maintenance
costs of the PTF.19 Appellants did not submit any evidence to establish the usual
practice or custom in the insurance industry for bonds that provide a mechanism to
cover the potential costs of mining operations.
3.3 Validity of BADCT provisions that allow pollutants to be injected directly into an aquifer (appeal issues 1, 57, and 62)
81. Dr. Wilson acknowledged that Arizona’s statutes and regulations allow ADEQ
to permit some discharge of contaminants into an aquifer.
82. Mr. Smit referred to BADCT Figure 3.2 that showed an ISL mine in an aquifer
that was similar to the PTF. See SWVP-156 at 155. Mr. Smit testified that ADEQ’s
statutes and regulations do not prohibit injection of pollutants into an aquifer. Mr. Smit
quoted § 3.4.5.3.1 of the BADCT Manual, entitled Discharge Control – In-Situ Leaching
with Deep Well Injection, in relevant part as follows:
19 See Appellants’ Post-Hearing Legal Memorandum at 198-200.
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Under no circumstances, shall any new deep injection wells (defined as Class III wells under EPA UIC regulations) be constructed to allow the migration of fluids into or between underground sources of drinking water. . . .
SWVP-156 at 164 (emphasis added). Mr. Smit testified that USEPA regulations require
that wells be cased so that no fluid escapes except at screened intervals. Mr. Smit
acknowledged that at a meeting between ADEQ and FCI, FCI expressed concern about
BADCT § 3.4.5.3.1. Mr. Smit testified that he informed FCI that he did not see BADCT’s
prohibition on the migration of fluid into or between sources of drinking water as a
restriction because if it were, FCI could not obtain permits that otherwise complied with
statutes, regulations, and other BADCT requirements.
3.4 ADEQ’s alleged reliance upon the as-yet-unissued USEPA UIC permit when it issued the Temporary APP (appeal issue 15)
83. The Temporary APP requires FCI to submit to ADEQ “[c]opies of Reports
submitted to the [USEPA] as required by the UIC permit, including groundwater
monitoring results from wells not covered by this permit.” ADEQ-7 at 22 § 2.7.4.4(14).
Ms. Widlowski testified that FCI’s UIC permit will require it to drill up to seven additional
wells surrounding the PTF well field.
84. Mr. Nicholls disagreed that in attempting to satisfy the APP legal
requirements, ADEQ relied upon conditions that may or may not be contained in an as-
yet-unissued UIC permit from USEPA.
3.5 The Temporary APP’s requirements for sampling groundwater
3.5.1 The single round of groundwater sampling for the wells in PTF well field (appeal issues 20 and 21)
85. Section 2.2.3(e) of the Temporary APP requires FCI to “establish ambient
mine block groundwater concentrations at the PTF wells in accordance with the
Compliance Schedule (Section 3.0).” ADEQ-7 at 4. Section 3.0 requires FCI to “submit
ambient mine block groundwater concentrations for the PTF wells” within 30 days prior
to start-up of the PTF. ADEQ-7 at 26.
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86. Appellants argued that a single round of groundwater sampling in the PTF
well field was not reasonable because post-restoration standards may not reflect pre-
mining conditions.
87. According to BHP’s 1999 summary, the background water composition
varied from well to well at BHP’s well field, depending on well site and well history. See
SWVP-593 at 4. Section 14B.3.3 of FCI’s application noted that groundwater levels
were declining and that groundwater quality has been changing over the past 15 years.
See ADEQ-1 at 738.
88. Mr. Smit explained that APP statutes only allow ADEQ to regulate
contaminants at the POCs. Mr. Smit testified that ADEQ could only have required FCI to
restore the mine block through an agreement. Mr. Smit noted that ADEQ had informed
the public in its response to comments that the aquifer would not be restored to baseline
conditions, in relevant part as follows:
ADEQ has determined that the project, as proposed, satisfied the requirements of BADCT (A.R.S. § 49-243(B)), and the protection of [Aquifer Water Quality Standards (“AWQS”)]20 at the [POC wells] (A.R.S. § 49-243(B)(2-3)). It is not required that the groundwater be restored to pre-mining conditions, as long as the AWQS are met at the [POC wells] and/or there is no further degradation of the aquifer relative to that pollutant at the [POC wells]. The mine block rinsing standards proposed in Section 2.9.2 are conservative to ensure BADCT is met and that AWQS will be maintained at the [POC wells], or that no further degradation occurs relative to that pollutant. The permit contains contingency actions that will be implemented if alert levels [(“ALs”)]21 are exceeded at the [POC wells]. Violation of an [Aquifer Quality Limit (“AQL”)]22 at a [POC well] is a permit violation.
ADEQ-10 at 34 (emphasis in original; footnotes added).
20 “‛Aquifer Water Quality Standard’ means a standard established under A.R.S. §§ 49-203, 49-241 through 49-252, and Articles 1,2, and 3 of [Title 49, chapter 2].” A.A.C. R18-9-101(5). 21 “‘Alert level’ means a value or criterion established in an individual [APP] that serves as an early warning indicating a potential violation of a permit condition related to BADCT or the discharge of a pollutant to groundwater.” A.A.C. R18-9-101(2). 22 “‛AQL’ means an aquifer quality limit and is a permit limitation set for aquifer water quality measured at the point of compliance that either represents an [AWQS], or if an [AWQS] for a pollutant is exceeded in the aquifer at the time of permit issuance, represents the ambient water quality for that pollutant.” A.A.C. R18-9-101(3).
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89. Dr. Wilson acknowledged that under Arizona APP statutes and regulations, a
permittee is not required to leave the mine block in a virgin condition, but only to meet
AWQS or if ambient conditions did not meet AWQS, to meet the AQLs set in the APP at
the designated POCs to avoid degrading the aquifer.
90. Ms. Widlowski testified that because generally ADEQ does not require a
permittee to establish ambient groundwater quality in the Pollutant Management Area
(“PMA”),23 it was unusual for ADEQ even to require one sample in the area where
injections will occur. Ms. Widlowski pointed out that the Temporary APP required FCI to
establish temperature, water levels, and chemistry prior to PTF operations for wells in
the PTF well field. See ADEQ-7 at 3-4 § 2.2.3, 26 § 3.0, and 33 Table 4.1-5.
91. Ms. Widlowski explained that although a single sample was not necessarily
accurate, the permit required 20 samples to be taken from each permitted well in a
relatively small area. ADEQ also had 15 years of data about water quality in the area
from BHP’s pilot project.
92. Mr. Brown testified that the PTF well field included 20 wells in an area of
slightly more than 2 acres. Mr. Brown opined that under Darcy’s law, 20 samples in
such a small area were temporally valid for a 14-month project and that the ambient
water quality was unlikely to change in the 14 months during which FCI would be
injecting lixiviant. See FC-25 at 127.
93. Mr. Nicholls testified that a total of 24 samples would be taken from each well
in the well field, including the four multilevel sampling (“Westbay”) wells,24 and that 24
samples were sufficient to establish ambient conditions in a 200-foot x 200-foot area. Mr.
Nicholls testified that contaminants left at injection sites routinely exceeded ambient
levels. Mr. Nicholls pointed out that FCI had an aquifer exemption from USEPA in
conjunction with BHP’s 1997 UIC permit that prohibited the installation of production wells
into the lowest 200 feet of the LBFU within 500 feet of the well field.
23 “The pollutant management area is the limit projected in the horizontal plane of the area on which pollutants are or will be placed. . . .” A.R.S. § 49-244(1). 24 Although FCI is not required to use multilevel sampling wells manufactured by Westbay, thoughout the hearing the multilevel sampling wells were consistently referred to as “Westbay wells.” This recommended decision continues the practice. Because FCI plans for the Westbay wells to provide operational, not environmental data, they are not included in the Temporary APP and FCI is not required to report to ADEQ any data from the Westbay wells.
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3.5.2 Sampling new POC wells after injection has begun (appeal issue 22)
94. Section 2.4 of the Temporary APP required FCI to install new POC wells
M54-LBF and M54-O for the PTF well field and M52-UBF for the impoundment pond “in
accordance with Compliance Schedule, Section 3.0.” ADEQ-7 at 5. Section 3.0
required FCI to “complete Ambient Water Quality Monitoring for POC wells M54-LBF,
M54-O and M52-UBF” by sampling the three newly constructed POC wells for eight
rounds, the first rounds to be taken “within 60 days of the effective date of the permit . . .
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95. Appellants argued that sampling POC wells after FCI had begun injection
operations compromised the reliability of the samples taken.
96. Mr. Nicholls testified that applicable regulation required FCI to take eight
samples from each of the new POC wells. Mr. Nicholls opined that the sampling that the
regulation requires complies with industry standards and that the samples would result in
restoration standards that reflected ambient conditions.
97. Ms. Widlowski testified that the shorter time frame for sampling new POC
wells in the Temporary APP compensated for the short time frame of the PTF. Ms.
Widlowski testified that because contaminants would not reach the POC wells during
the time that the PTF was expected to be operational, the condition of the wells 60 days
after the effective date of the Temporary APP would reflect pre-operational conditions.
3.6 ADEQ’s failure to consider BHP’s reports from its 1997-1998 pilot project (appeal issues 19, 39, and 41)
3.6.1 “Disparities” from BHP’s pilot project
98. When ADEQ granted Temporary APP No. P-106360 to FCI, it had in its
possession a letter from a registered geologist at Merrill Mining to Mohave Resources
dated November 21, 2006. See ADEQ-9A at 498. The letter provided in relevant part
as follows:
[T]here were major disparities between the results of field tests and the assumptions regarding the copper recovery mechanisms and recovery rates that were used to justify the permits for, and the economic viability of, the Florence Copper Project. The disparities led BHP Copper to conclude
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that the field test results did not justify building a leach facility at Florence and that a new field test should be conducted, provided that certain conditions could be met. Until new field tests demonstrate adequate copper recovery and aquifer remediation, a reasonably grounded economic model for the Project cannot be developed and, without such a model, there can be no basis for determining fair royalty. . . . . Merrill has three basic concerns with respect to the property described above. • Uncertainties - Merrill is concerned that the time required for mining and closing the mine cannot now be reasonably estimated. As discussed below, recovery-related issues suggest that the time required to leach the copper and remediate the impacted aquifer will be much greater than originally estimated and could easily be two times the 15 years originally estimated. With the 15-year post-closure requirement, it is possible that the total time between start of operations and completion of post-closure monitoring and maintenance could exceed 45 years. . . . . Recovery-related issues BHP Copper never finalized its report on the field tests that were conducted in 1997 and 1998. A Draft Field Test Report (Report) was prepared and shown to have been revised in October 1999. However, the Report apparently was never completed. The Report is of special significance because it discusses major disparities between the data that was produced during the field tests and the data used to justify the economic viability of the Project during the permitting of the facility in 1996 and 1997. The most significant disparities discussed in the Report relate to the disparities between the recovery rates measured during the field tests and the recovery rates that were projected on the basis of laboratory tests. On page 109 of the Report, BHP Copper noted that a recovery curve had not been demonstrated and that "If the solution chemistry in the production well BHP-1 is, in fact, a result of water-rock reactions, in-situ leaching at Florence may not be possible.” Based on the discussions in the Report, BHP Copper had based its recovery estimates and mine plan on the
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assumption that 67% of the total copper was in fractures easily accessible to the acidified leachate solution. However, the very low recovery rates obtained during the field test suggest that much longer leach times might be required. (Report, pp. 107 and 110.) This means that that the time required to recover copper at each well will be much greater than originally envisioned. The amount of copper recoverable using extended leach times is unknown. However, BHP Copper notes on page 107 of the Report that models suggest that copper recovery of 60% to 65% might be obtained with leach times of 6 to 8 years. The impacts that such long leach times would have on the water balance and mine block closure plans were not addressed in the Report. Effect of transition The shift to extended leach times will likely require major revisions to the facility design, mine operating plan, mine block closure plans, facility closure plans, and post-closure plans. Some, if not all, of the revisions will result in increased capital and operating costs. All will require major modifications of permits and it is very likely that [ADEQ] will require the modifications to be approved prior to the next field test. All of the above, plus the results of the next field test, will need to be reflected in the Project's economic model. Additional studies and leach tests On page 111 of the Report, BHP Copper concluded that a new leach test should be completed because the field test results were not sufficient to justify building an in-situ leach facility at Florence. BHP Copper cautioned that the new test should not be run under the same conditions as the first because the results would likely be the same. Instead, it recommended that additional wells be drilled so that the test would include multiple cells and that the test be conducted over a much longer period than the first field test. The creation of [a] multi-cell test field will not only involve additional well costs, it will require a significant expansion of the existing water management system. Most importantly, BHP Copper recommended that there be an improved understanding of the geochemical and hydrogeological mechanisms at work before attempting the design of a new field test. BHP Copper estimated that a leach test of at least
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200 days would be required to better understand fracture flow. (Report, p. 102.) BHP also noted that the estimated recovery rates cannot be validated until a field-scale leach test is run to completion and that running such a test to completion would take years. (Report, p. 110.) Remediation Before suspending hydraulic control at the test field, Merrill had detailed analyses of the groundwater performed in order to comply with state and federal permits. The tests demonstrated that the groundwater within the zone impacted by the test had been restored to groundwater standards or to pre-test conditions as required by the permits. However, the tests indicated that a significant decrease in pH could occur if leaching of the deposit proceeds as currently authorized by the permits. The methods discussed in the Report for increasing copper recovery would further exacerbate the low pH problem and could mobilize heavy metals and radiological elements. Merrill does not know how the low pH issue can be successfully addressed. . . . . I bring the foregoing to your attention so that you will understand why Merrill cannot enter into the option agreement that you proposed. . . .
SWVP-193 at 1-4 (quoted in part at SWVP-792 at 17; emphasis added by Dr. Wilson).
Dr. Wilson testified that an essential principle in permitting is “lessons learned” and that
the “disparities” referenced in Merrill Mining’s November 21, 2006 letter, especially
concerning water management, geochemical and hydrogeological mechanisms, fracture
flow, and low pH after restoration, were “red flags.” Dr. Wilson opined that if problems
had been encountered on a previous similar project, the permitting agency should take
steps to ensure that the problems were addressed in the current permit. Dr. Wilson
opined that ADEQ’s failure to take steps to at least obtain the report from BHP’s pilot
project that Merrill Mining’s November 21, 2006 letter referenced was arbitrary.
99. Mr. Kline disagreed with the significance that Dr. Wilson attached to the
“major disparities” noted in Merrill Mining’s November 21, 2006 letter. Mr. Kline explained
that BHP’s pilot project was supposed to last 12 to 14 months and that the commercial
mine had been designed to operate at least 60 months, but that the project had been shut
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down after only three months. Mr. Kline testified that in February 1998, BHP stopped the
pilot test because the price of copper was dropping. Mr. Kline testified that BHP’s team
was in the process of preparing the final report when he was told to lay off “a building full
of people,” including the chief hydrologist for the project.
100. In January 2013, SWVP called ADEQ’s attention to the possible significance
of the “disparities” mentioned in Merrill Mining’s November 21, 2006 letter as part of its
public comments. ADEQ responded that it was not aware that BHP had abandoned the
project due to any disparities, but that ADEQ understood that BHP had delayed
construction of the commercial ISL copper mine due to depressed copper prices. ADEQ
stated that FCI’s PTF would be “a stand-alone . . . test, independent of assumptions or
results obtained by [the] previous test completed by BHP . . . .” ADEQ-10 at 14. ADEQ
did not request that FCI provide the draft report referenced in Merrill Mining’s November
21, 2006 letter or any other documents from BHP’s pilot project.
101. Mr. Johnson testified that he did not believe that Merrill Mining’s November
21, 2006 letter stated that ISCR mining could not be done at the property. Mr. Johnson
believed that the statement about “major disparities between the results of field tests and
the assumptions regarding the copper recovery mechanisms and recovery rates” was
only a tactic because Merrill Mining was negotiating with several parties for the sale of the
property for other purposes, including residential. Mr. Johnson testified that Merrill Mining
later changed its position by negotiating with Hunter Dickinson to form a partnership to
perform ISCR mining at the site. See FC-55, FC-56, and FC-57. Mr. Johnson testified
that he disagreed with the conclusions of Merrill Mining’s geologist in the November 21,
2006 letter.
102. Mr. Smit testified that Merrill Mining’s November 21, 2006 letter did not
cause ADEQ to doubt the propriety of granting the Temporary APP to FCI because the
primary gist of the letter indicated that further mining might not be economically feasible
because it would take longer. Mr. Smit noted that the letter did not state that BHP’s data
was inaccurate or BHP had violated applicable AWQS, AQLs, or other permit conditions
at the pilot project.
103. Ms. Widlowski testified that ADEQ did not ignore any data and that just
because a document exists, it does not mean that the document is relevant to ADEQ’s
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review process. Ms. Widlowski testified that ADEQ issued the Temporary APP for a
stand-alone project that would succeed or fail on its own merits. Ms. Widlowski
explained that the previous owner’s unfinished test did not imply that FCI would not gain
useful information from the PTF.
104. ADEQ’s attorney asked Dr. Wilson if ADEQ, with its limited resources and
competing demands, reasonably may not have considered Merrill Mining’s November 21,
2006 letter to be a red flag. Dr. Wilson responded that he did not expect ADEQ to expend
the same resources on every permit, but that requesting a single BHP report would have
explained some of the concerns noted in the letter. Dr. Wilson expected that for a one-of-
a-kind solution mine, ADEQ would have taken the time to read a single report. Dr. Wilson
opined that although Merrill Mining’s November 21, 2006 letter stated some economic
concerns, it also described uncertainties with aquifer remediation, including a significant
decrease in pH that could mobilize heavy metals and radiological elements, which was an
environmental, not an economic, concern.
105. Dr. Wilson cited a December 8, 2005 letter from Merrill Mining to ASLD that
noted that BHP’s draft report was “extremely rough in some parts, had missing pages and
appeared to have been copied with another document.” SWVP-184 at 1. Nonetheless,
Merrill Mining’s December 8, 2005 letter indicated that BHP’s draft report was an
important document, stating in relevant part as follows:
The Draft Field Test Report is dated October 1999. It is an important document because it contains the goals, results, conclusions, and recommendations relative to tests that were conducted using test wells that were installed to conduct a 90-day pre-operational test that was required as a condition of the Permit. . . . . . . . All of the aforementioned documents were discussed or referenced in our meeting to describe the information that BHP had developed regarding the economic feasibility of the Project. Mr. Ames explained that he had reviewed the key elements of the reports as a professional geologist and that he had doubts that the Project would be feasible. He noted the lack of clean, locally available and inexpensive acid needed for injection; uncertainties regarding the flow and water-rock interactions within the leach zone; remediation
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uncertainties; and the need for an additional leach test that would involve a significantly larger area than used during the first test. . . .
SWVP-184 at 2. Merrill Mining’s December 8, 2005 letter was copied to ADEQ.
Dr. Wilson testified that the December 8, 2005 Merrill Mining letter was another red flag to
ADEQ.
3.6.2 Indications of migration of fluid at BHP’s pilot project
3.6.2.1 Indication of horizontal migration of fluid during BHP’s pilot project
106. Dr. Wilson testified that contrary to FCI’s statement in its application, BHP
did not maintain hydraulic control during its pilot project because a graph of BHP’s draft
field test report showed elevated pH levels in two observation wells through mid-1999,
indicating a horizontal escape of mining solution into the aquifer. See SWVP-792 at 37.
Although sulfate naturally occurs in the aquifer at a rate of 200 mg/l, it reached a level of
more than 2,000 mg/l in one of the observation wells in April 1998, approximately two
months after BHP stopped injection. BHP was not required to monitor or to report to
ADEQ sulfate in the observation wells.
107. Dr. Wilson testified that OWB-1, BHP’s observation well that showed the
highest sulfate level, was located in the northeast part of BHP’s well field and OWB-4,
which showed the second highest sulfate level, was located in the southwest,
catercornered to OWB-1. See SWVP-792 at 14. Dr. Wilson opined that nothing
explained how sulfate reached BHP’s observation wells because if hydraulic control was
successful, sulfate should have been confined to injection and recovery wells.
108. Mr. Brown noted increased sulfate concentrations at OWB-1 during
pumping periods. Mr. Brown explained that the leachate had a 1-2 pH that
subsequently rose to 7 in the well field, which is close to neutral. See FC-73 at 7,
SWVP-779. Mr. Brown testified that although the readings do not show a loss of
leachate to the environment, the readings show that BHP was close to losing control.
Mr. Brown opined that if BHP had the information about low pH at the observation wells
during injection operations, it would have increased pumping.
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109. Mr. Brown noted that BHP’s well field was surrounded by POC wells that
performed regular monitoring that BHP reported to ADEQ. Mr. Brown testified that
sulfate was steady until the very end, when sulfate shot up. See FC-74 at 23. Mr.
Brown testified that according to Mr. Nicholls, Haley & Aldrich confirmed that the
increase was due to a change in sampling technology, not the arrival of a sulfate plume.
Mr. Brown testified that although BHP data showed that groundwater elevations
dropped from 1380 feet to 1206 feet over 17 years, which is a huge drop that is
consistent with overdraft by agriculture, BHP’s POC wells do not show any migration of
regulated constituents.
110. Mr. Kline testified that Dr. Wilson’s conclusion that the figure from BHP’s
draft report showed horizontal escape of acid from BHP’s pilot project based on increased
sulfate in some observation wells for more than a year after injection had ceased was
misleading because sulfate has a different chemical composition than acid and sulfate
can be present without acid.
111. Mr. Kline testified that the plume never got away from BHP because it
maintained a front, in which the solution moved away from the injection wells in a wall.
Mr. Kline testified that samples of groundwater were taken at the observation wells using
a low-volume pump, which sucked contaminants toward the wells. Mr. Kline opined that if
sulfate reached the observation wells, pumping pulled the sulfate back into the system.
112. Mr. Kline testified that he agreed “indirectly” with Dr. Wilson’s statement that
low pH readings at BHP’s observation wells indicated that acid still remains at the site.
See SWVP-792 at 16. Mr. Kline explained that by definition, a pH lower than 7 is acidic
and that drinking water frequently has a pH of 6.8. Mr. Kline testified that he would expect
pH to keep climbing after the end of the test because the sulfuric acid in the solution
reacts with rock to form calcite and other compounds. Mr. Kline pointed out that low pH
can be treated with sodium bicarbonate.
113. Mr. Johnson acknowledged that he believed that fluid had unintentionally
migrated horizontally past the recovery wells during BHP’s pilot project, but that the fluid
had been recovered and that during the pilot project, BHP had maintained 100% control of
any horizontal migration.
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114. Mr. Nicholls testified that injected solution did not remain at BHP’s well field
but that the low pH was an acidic condition that remained after the well field’s buffering
capacity was stripped out. Mr. Nicholls opined that the buffering capacity could be
restored by adding a neutralizing agent, which BHP did not do. Mr. Nicholls explained
that the pH of the injected solution was between 1 and 2, several orders of magnitude
above the sulfuric acid in the injected solution, and that the pH of lemon juice and the
recovered pregnant leach solution (“PLS”) were both approximately 3. Mr. Nicholls did not
agree that acid had escaped horizontally at BHP’s pilot project because BHP had
measured sulfate, not acid. Mr. Nicholls did not see the elevated pH at the observation
wells as evidence that material got past the observation wells because he felt that the
contaminants were drawn back in. Mr. Nicholls testified that in the 16 years since BHP’s
pilot project, there was no evidence that contaminants migrated beyond the well field.
115. Dr. Wilson disagreed with Mr. Johnson’s and other FCI witnesses’
testimony that the lixiviant that FCI intended to use was an innocuous substance that
was comparable to lemon juice. Dr. Wilson summarized the material safety data sheets
for lemon juice and sulfuric acid. See SWVP-832 at 9. Although lemon juice may
cause eye irritation, it presents a low hazard from skin contact, ingestion, and inhalation.
In contrast, sulfuric acid would cause severe and possibly irreversible burns in the eye,
would burn skin, would cause severe and permanent injury if ingested, and would cause
severe irritation, burns, and tissue damage if inhaled. Dr. Wilson noted that no potential
adverse health effects result from chronic exposure to lemon juice, but chronic exposure
to sulfuric acid could result in death. Lemon juice and vinegar are weak organic acids
that will degrade, but sulfuric acid is a strong acid. Although Mr. Johnson testified that
after the lixiviant is put into the aquifer, it will have a pH of 2, which is similar to lemon
juice, Dr. Wilson testified that the solution still would contain substantial amounts of
copper and arsenic and that although some of the acid would be consumed, what
remained would still be a very strong toxic chemical. Dr. Wilson testified that although
the lixiviant was only one-half of one percent sulfuric acid, if it was not capable of
dissolving copper and taking copper out of rock, the lixiviant would not be used. This is
why an APP was required.
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116. Dr. Wilson testified that a solution of .5% sulfuric acid and 99.5% water
would have a pH of about 1.1. Lemon juice has a pH of about 2.2. Sulfuric acid is a
disassociated acid that is corrosive. A pH difference of 1 shows a 20-fold difference.
Dr. Wilson testified that after the solution dissolves the copper, it will be in the pH range
of 2.
117. Dr. Wilson explained that the chemical formula for sulfuric acid is H2SO4.
See SWVP-832 at 1. The H2 made the substance an acid; the SO4 indicated sulfate.
Sulfate is acidic. Dr. Wilson noted that if pH drops, conductivity rises. Dr. Wilson noted
further that the only reason that sulfate would be at the site was due to BHP’s injections.
Because Mr. Kline was critical of Dr. Wilson’s reliance on sulfate as an indicator of fluid
migration from the ISL mine, Dr. Wilson obtained BHP’s pH data and added it to the
graph of sulfate readings at BHP’s observation well OWB-4. See SWVP-832 at 2. Dr.
Wilson opined that the low pH and sulfate were due to escaped solutions from the pilot
project.
118. Mr. Smit testified that ADEQ was aware of low pH in test data from BHP’s
pilot project. The high sulfate levels started shortly after BHP started injection in late
1997. Mr. Smit testified that ADEQ expected some contamination in the PMA during and
after PTF operations but that as long as there are no exceedances at the POC wells,
ADEQ will not require corrective action. Mr. Smit was not concerned about high sulfate or
pH at BHP’s observation wells because the sulfate and low pH did not extend beyond
BHP’s well field or to BHP’s POC wells.
3.6.2.2 Indication of vertical migration of fluid at BHP’s pilot project
119. BHP’s draft field test report included a graph of the results of electric
resistance tomography tests performed by Dr. Douglas LaBrecht from Steamtech
Environmental Services in Bakersfield, California (“Steamtech”). See SWVP-649 at 56.
The graph showed higher readings from sensors installed inside the casings of certain
recovery wells in the exclusion zone and LBFU during BHP’s pilot test. See SWVP-649
at 57. BHP’s draft report observed that “[a]lthough the screen of the well is 40 feet below
the top of the oxide, the solution has flow[ed] vertically into overburden for about 20 feet
which is consistent with the numerical simulations.” SWVP-649 at 56.
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120. Dr. Wilson noted the locations of the recovery wells in the graphic: BHP-5
was in the southwest part of BHP’s well field, BHP-1 was in the center, and BHP-3 was
in the northeast. See SWVP-792 at 14. Dr. Wilson noted that injection was still
occurring when BHP recorded the electric conductivity readings. Dr. Wilson did not
know if the solution noted in the report was recovered.
121. Mr. Kline agreed that during BHP’s pilot project, fluid had moved into the
LBFU. Mr. Kline explained that unlike the Temporary APP for FCI’s PTF, BHP’s permit
allowed excursion of contaminants into the LBFU and that only the UBFU above the
aquitard of the MFGU was protected.
122. Mr. Kline testified that under a particle tracking test, the migration of fluid
depended on how much water was taken out of the system. Because the price of copper
was low during BHP’s pilot project, to conserve water, BHP allowed solution to migrate
into the LBFU. Mr. Kline testified that part of BHP’s pilot project was to determine the
level of flow that it needed to maintain operations and that by reducing the amount of
water, BHP had been able to increase the tenor of the copper. Mr. Kline testified that the
temporary excursion of solution into the LBFU could have been avoided by increasing
pumping at recovery wells.
123. Mr. Kline identified his report on BHP’s pilot project, entitled Well Field
Reclamation Test and Well Field Metallurgical Balances. See SWVP-594. Although the
report was not signed, Mr. Kline acknowledged that it was final. Mr. Kline’s report
stated in relevant part as follows:
Many of the wells were fitted with conductivity probes spaced every 3 meters along the casing. Test work conducted by [Steamtech] showed that the solutions migrated up into the [LBFU] about 22 feet. The hydrologic model (Modflow) indicated the solution would move upward about 25 feet but not enter the [UBFU].
SWVP-594 at 2. Mr. Kline’s report also stated:
The test results have definitively shown solutions moving through both the ore and LBFU zones. Gypsum solubility is about 2.5 gram per liter, so loss of sulfate to gypsum formation occurred as the ore and lower basin fill reacted with the acidic solutions and gypsum saturation was reached.
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SWVP-594 at 5. Mr. Kline explained that his use of the word “definitely” was due to the
fact that no monitoring system in the LBFU measured the amount of escaped solution.
124. Although Mr. Kline acknowledged that solution had migrated through the
exclusion zone into the LBFU during BHP’s pilot project, he disagreed that Steamtech’s
graphic showed that the solution had migrated vertically into the LBFU based on high
electric conductivity readings at the three recovery wells. Mr. Kline explained that BHP
was using innovative technology to perform noninvasive monitoring and that the
substances that produced the higher conductivity were not acid. Mr. Kline explained
further that BHP’s wells had a PVC casing surrounded by cement through the 40-foot
exclusion zone and that the electric conductivity readings were taken inside the well
casing. Mr. Kline opined that the “purplish blob” in the center of Steamtech’s figure
probably was the pump apparatus because BHP’s wells had a stainless steel grounded
cable to hang the pump in the well. See SWVP-649 at 57.
125. Mr. Johnson accepted that during BHP’s pilot test, solution had migrated
into the LBFU. Mr. Johnson testified that FCI rejected Mr. Kline’s report of escape of fluid
into the LBFU, however, because FCI did not have data to support Dr. LaBrecht’s
conclusions.
126. Mr. Johnson testified that there was some confusion about whether BHP
had lost hydraulic control. Mr. Johnson testified that Steamtech’s graphic that purported
to show loss of hydraulic control showed sensors inside the well casing, but that the
stainless steel cables that held the pump apparatus in place would throw electric
conductivity measurements off. Mr. Johnson testified that based on pH data, he
understood that BHP had maintained hydraulic control during its pilot project.
127. Mr. Brown and Mr. Nicholls testified that Dr. LaBrecht’s conclusion that
solution had flowed vertically 20 feet into the LBFU was not supported by Steamtech’s
electric conductivity studies. See FC-73 at 9-10. Mr. Brown and Mr. Nicholls testified
that the well construction explained the higher electric conductivity readings inside the
well casing. See FC-74 at 25. Mr. Brown testified that the computer technology was
incapable of interpreting anything in the top panel of the illustration.
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128. Mr. Nicholls testified that the Steamtech graphic had no supporting data and
that he would like to see data so that he could verify that the conclusion was correct. Mr.
Nicholls explained that based on BHP’s model settings, it could push solution into the
LBFU, and that USEPA may have asked BHP to eliminate hydraulic control to see if the
fluid would migrate. Mr. Nicholls does not have the model to check and does not know
inputs or recovery for injection rates.
129. Mr. Nicholls acknowledged that BHP’s tests were performed by Dr.
LaBrecht of Steamtech. Steamtech no longer exists and Mr. Nicholls had not contacted
Dr. LaBrecht. Mr. Nicholls had not read Dr. LaBrecht’s report. See SWVP-637 at 566.
Mr. Nicholls acknowledged that he made the decision not to inform ADEQ or USEPA
about Mr. Kline’s report and that he did not provide Dr. LaBrecht’s or Mr. Kline’s reports
to ADEQ. Mr. Nicholls denied that it was scientifically impossible to conclude that a test
conducted by a Ph.D. in his field of expertise did not show what it represented. Mr.
Nicholls could not say whether at least some of the conductivity shown on Steamtech’s
figure was escaped solution.
130. Mr. Nicholls acknowledged that FCI’s groundwater models included 8%
porosity for certain layers of the oxide unit throughout the PTF well field. Because FCI
had few direct porosity values, it relied on BHP’s conclusions. Mr. Nicholls explained
that he will rely on conclusions without data if the conclusion is quantified.
131. Mr. Bryan testified that because the LBFU contained calcium carbonate
that would absorb acid solution, if acid escaped into the LBFU during FCI’s PTF, it
would react with the substance already there and become more neutral.
132. Mr. Johnson testified that the geochemistry of the PTF site made migration
of solution unlikely. Mr. Johnson explained that the LBFU contains between 5 and 10%
calcium carbonate that will produce gypsum if sulfuric acid interacts with it. Mr. Johnson
insisted that FCI will not allow migration of acid solution into the LBFU, but opined that if
acid migrates into the LBFU, it will precipitate into a solid. Mr. Johnson testified that if acid
migrates into the LBFU, it will not move more than a few inches.
133. Dr. Wilson acknowledged that he could not quantify BHP’s pilot test’s
measurable impacts on the LBFU because the appendix to the draft report was no longer
available. Dr. Wilson acknowledged that if calcium levels in the LBFU were high, CaSO4
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or gypsum might result from the migration of sulfate, but insisted that high calcium levels
in the LBFU did not alleviate his concern about vertical migration of injected solution into
the LBFU.
134. Mr. Smit acknowledged that FCI’s application for the Temporary APP
included a geochemical model that predicted that there would be no migration of sulfate
into the upper 40 feet of the oxide zone or into the LBFU and that the Temporary APP
required injected solutions to be contained in the oxide zone. See ADEQ-1 at 653 §
14A.6.2.2.1; ADEQ-7 at 4 § 2.3.1. Mr. Smit acknowledged that if he had known of a past
proven excursion into the LBFU, he might have questioned whether FCI’s reliance on its
model was reasonable.
135. Dr. Wilson noted that BHP also reported an upflow through the exclusion
zone during the pilot test. See SWVP-792 at 45 (referring to SWVP-649 at 50; SWVP-
596 at 37). Dr. Wilson noted that BHP’s model predicted a significant upflow into the
LBFU and that although such upflow was the natural and expected result of injection, it
was prohibited by FCI’s Temporary APP.
136. When Appellants’ attorney asked Mr. Johnson what FCI had done to avoid
the possibility of vertical migration during PTF operations, he responded that FCI’s
models predicted that such migration would not occur. Mr. Johnson acknowledged that
BHP had used similar hydraulic control and technology, but stated that BHP’s mining
operation and equipment were not as sophisticated as FCI’s.
3.6.2.3 BHP’s compliance with permit conditions for hydraulic control
137. Dr. Wilson testified that he prepared graphs of the data included in BHP’s
monitoring reports that showed that it had complied with permit requirements for
hydraulic control by maintaining an inward gradient and recovering more fluid than it
injected. See SWVP-792 at 39 and 40.
138. Mr. Kline testified that BHP never questioned whether it maintained
hydraulic control because BHP’s well pressure, transducers, flow meters, and other
readings were shown on computer screens where operators could monitor the readings.
Mr. Kline stated that in addition, alarms would sound if a well reached an AL or other
indicia of concern.
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139. Mr. Smit acknowledged that under BADCT § 1.1.3, ADEQ needed to ensure
that the permittee used demonstrated control technologies that were appropriate to the
site. See SWVP-156 at 30. Mr. Smit acknowledged that BADCT § 3.4.1 included the
following provision:
Guidance in this Manual for BADCT development at in-situ leach operations is necessarily more general than for other types of facilities due to the higher degree of dependence on site specific factors. BADCT applies to the in-situ leaching process from the application of leaching solutions to the recovery of these solutions. Generally, the objective of BADCT for in-situ facilities is to maintain hydrologic control over leaching solutions throughout the process. . . .
SWVP-156 at 152 (emphasis added). Mr. Smit acknowledged that if ADEQ had
information that FCI did not maintain fluid in the oxide unit, FCI would not have complied
with the Temporary APP’s and BADCT’s requirements for hydraulic control. Mr. Smit
acknowledged that if feedback was required to ascertain whether FCI maintained
hydraulic control, BADCT would require such feedback.
140. Ms. Widlowski testified that although she did not review all aspects of BHP’s
pilot test, she felt that the Temporary APP complied with statutory requirements. Ms.
Widlowski testified that nothing in Dr. Wilson’s testimony caused her to doubt that the
Temporary APP would protect downgradient users or to believe that any contaminant
would escape the PMA. Ms. Widlowski testified that to her knowledge, BHP’s pilot project
had not resulted in any violations of AWQS or AQLs at POC wells.
3.6.2.4 Concerns about the equivalent porous media assumption in modeling during BHP’s pilot project
141. Among the figures in BHP’s draft hydrogeological study and draft field test
report were charts that showed calibrated results for hydraulic conductivity in feet per day
(“K values”) based on data from tracer tests. A figure entitled, “Calibrated Results of
Hydraulic Conductivity” in BHP’s draft hydro-leach and field test reports showed disparate
K values between certain recovery and observation wells. See SWVP-596 at 24 (figure
13), SWVP-649 at 47 (figure 19) (reproduced at SWVP-792 at 43). BHP’s draft field test
report included the following statement about hydraulic conductivity:
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Figure 18 shows the field drawdown curves and the calibrated curves. Figure 19 shows the calibration results of transmissivity. The results show that the zone connecting BHP 5 and BHP 9 does have significant differences with the surrounding rocks. The conductivity of the high conductive zone is 5 ft/day, sandwiched by the low conductive zones of as low as 0.1 ft/day. This feature indicates that there is a short circuit between BHP 5 and BHP 9. The wellfield is separated into two somehow isolated areas.
SWVP-649 at 45 (partially quoted at SWVP 792 at 43; emphasis added by Dr. Wilson).
142. Mr. Nicholls testified that BHP’s draft field test report’s conclusions that the
zone connecting wells BHP-5 and BHP-9 had a short circuit and that BHP’s well field
was divided into two somehow isolated areas indicated that BHP’s modelers were trying
to understand results through an inverse model, but that other models besides
heterogeneity could explain the results. Mr. Nicholls noted that the reported K values
for hydraulic conductivity were derived from other data that was no longer available.
143. Mr. Nicholls testified that the figure for calibrated results of hydraulic
conductivity in BHP’s draft reports was a two-dimensional representation of a single layer
of the model. Mr. Nicholls testified that BHP had used a 3-layer model, that the chart
represented the lowest layer, and that he does not have any information about the other
two layers. Mr. Nicholls testified that BHP had a 400-foot thick layer and inserted a 200-
foot vertical wall in the graphic that does not exist. Mr. Nicholls acknowledged a faster
flow to some wells, but noted no evidence indicated a short circuit to outside the well field,
beyond the cone of depression, or outside BHP’s hydraulic control.
144. Dr. Wilson testified that BHP’s report suggested heterogeneity in the
aquifer, which would explain the horizontal and vertical escapes of fluid. BHP and FCI
both used an assumption of equivalent porous media in their groundwater flow and fate
and transport models. Dr. Wilson explained that sand on a beach is the ultimate porous
media but that rock that is so fractured as to be pulverized may result in similar uniform
flows in which the aquifer spreads out evenly. Dr. Wilson stated that the degree of
fracturing in bedrock that allows uniform flows is called equivalent porous media in
modeling.
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145. Dr. Wilson explained that if the bedrock was so fractured as to make the
equivalent porous media assumption appropriate, one would expect close equivalencies
in drawdowns at recovery wells. Dr. Wilson testified that during the comment period,
although he did not have BHP’s draft reports, BHP’s field parameter results were
tabulated in Attachment 10C to FCI’s application. See ADEQ-9A at 11256. Dr. Wilson
testified that he charted the hydraulic conductivity of recovery wells BHP-4, located in the
northwest part of BHP’s well field, and BHP-5, in the southwest, during the injection phase
of BHP’s pilot project as a rolling average. See SWVP-792 at 44. Dr. Wilson testified that
these two recovery wells were 100 feet apart and that if equivalent porous media
described the bedrock, one would expect similar timing and similar levels in the wells. Dr.
Wilson noted that the data showed a difference of 25 to 30 feet in the elevation or head
measured at the two wells that persisted throughout BHP’s pilot project.
146. Dr. Wilson testified that he also submitted a graph to ADEQ during the
comment period based on the limited data that was available at the time that showed the
differences in electric conductivity between recovery wells BHP-5 and BHP-2 during the
injection phase of BHP’s pilot project. See ADEQ-9A at 11258. Dr. Wilson testified that
BHP-2 was the southeast recovery well, approximately 100 feet to the east of BHP-5.
The electric conductivity of the water measured the amount of sulfuric acid or sulfate that
remained in the aquifer after injection. Dr. Wilson testified that the different electric
conductivities for the two wells also indicated heterogeneity.
147. Dr. Wilson testified that BHP hired two consultants to evaluate its fate and
transport model, Dr. Denis L. Norton and Dr. Peter C. Lichtner. See SWVP-649 at 151-
152 § 5.5.3. Dr. Wilson testified that BHP’s draft report identified similar issues to the
ones that Merrill Mining later identified in its November 21, 2006 letter. The draft BHP
report summarized Drs. Norton’s and Lichtner’s conclusions in relevant part as follows:
The major task for Norton was to analyze the behavior of solution chemistry during the leach portion of the test in a conceptual one-dimensional path from BHP-6 through the two CH monitor wells to BHP-1. However, flow and transport properties derived from volume-averaged conceptual models (e.g., equivalent porous media) could not be used by reactive transport models to provide an acceptable fit to the data. Additional work was therefore conducted to explore the
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suitability of alternative conceptual models to flow and transport (Norton, 1998, 1999c). The sulfate arrival curves from the non-reactive tracer test were decomposed into multiple arrival curves, with each arrival interpreted to represent contributions from a separate fracture set (Norton, 1998). A similar analysis was performed for the copper profile of CH-2, which also suggested multiple arrivals (Norton, 1999c). These findings were not explicitly incorporated into the reactive transport model, but may partially explain why the model constructed by Lichtner (1999) could not be fully validated by the field test data.
SWVP-649 at 153. Dr. Norton in the draft report concluded that “[f]low and transport
models that use volume averaging methods to obtain fluid velocity and flow porosity
estimates do not accommodate the type of percolation network geometry that probably
exists within the Florence deposit.” SWVP-649 at 154. BHP’s draft report also stated Dr.
Lichtner’s findings as follows:
Higher permeability and porosity in the upper portions of the oxide zone caused a limited amount [of] self-dilution as injected solutions migrated though the upper layer. Because of the higher porosity, these solutions were delayed in arriving at BHP-1. Even so, Lichtner (1999) concluded that the present formulation of the flow and transport was not suitable for satisfactory calibration of the model. Although Lichtner (1999) did not argue for an alternative conceptual approach in the manner of Norton (1999c), he did recognize that a multiple continuum model was minimally necessary, coupled with a more complete understanding of the flow characteristics.
SWVP-649 at 159.
148. Dr. Wilson testified that BHP’s draft report concluded that the assumption
of equivalent porous media did not work and that a different model was needed for the
site. Dr. Wilson opined that BHP’s conclusions meant that a model that was based on
an equivalent porous media assumption may not work to prevent migration of pollutants
at the PTF. Dr. Wilson explained that because an equivalent porous media flow model
is an easy model, such a model is commonly used but that if a site has heterogeneity,
more information is needed to construct an accurate model.
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149. Appellants obtained Dr. Lichtner’s June 26, 1999 final Reactive-Transport
Simulations of the BHP Copper Florence, Arizona In Situ Solution Mining Test Facility.
Dr. Lichtner concluded:
The 3D Stratigraphic Model gave the best fit compared to the 2D Plan View Model for describing the processes taking place at the Florence in situ leach test site. The 3D Stratigraphic Model accounted for missing between the upper and lower oxide zones [sic] and was able to explain, in part, the observed reduction in copper concentration in the [PLS]. Mixing and the higher porosity used in the simulations in the upper oxide zone, lead to a delay in copper released from the upper oxide zone. Both models, however, are based on a volume averaged continuum representation of fractured porous media. Clearly, additional aspects not accounted for in these [models] are important, such as the presence of fractures resulting in the possibility for fast pathways through the leach zone, and heterogeneities in porosity, permeability, and ore and gangue abundances and their reactive surface areas. To identify such features will be difficult at best. Fracture flow seems to be times [sic], both of tracers and copper effluent.
SWVP-657 at 29. Dr. Wilson testified that Dr. Lichtner’s specialty was consulting on
reactive transport modeling and that Dr. Norton was the consulting geochemist on BHP’s
pilot project. Dr. Wilson believed that Dr. Lichtner’s conclusions confirmed and
strengthened his comments to ADEQ about the inadequacy of equivalent porous media
assumption in FCI’s models.
150. Mr. Kline did not agree with Dr. Wilson’s opinion that due to heterogeneity in
BHP’s well field, a short circuit existed between recovery wells BHP-5 and BHP-9. Mr.
Kline noted that based on the results of 47 pump tests, BHP’s model assumed equivalent
porous media and that USEPA’s and ADEQ’s hydrologists agreed with the assumption.
151. Appellants’ attorney called Mr. Kline’s attention to the portion of BHP’s draft
report that stated in relevant part as follows:
Total porosity values of crystalline rocks that have been measured in this and other studies (Norton and Knapp, 1977) are significantly less than the effective porosity value required to reproduce the behavior of tracers using flow and transport models (Chong-Diaz, 1997). Although it has been argued that groundwater flow can be suitably modeled using
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an assumption of equivalent porous media (cf., Orr, 1998), the discrepancy between modeled and measured porosity suggests that this assumption should be re-evaluated. . . . . More importantly, as suggested by Dr. Norton, calibration may never be achieved under a conceptual framework of flow and transport through equivalent porous media, instead a hierarchical fracture network approach may be required.
SWVP-649 at 69,152. Mr. Kline surmised that either Mr. Chong-Diaz or Mr. Gulong,
who were hydrologists employed by BHP, had written the passages. Although Dr.
Lichtner and Dr. Norton were hydrological consultants whom BHP had hired to evaluate
the flow regime for the pilot project, Mr. Kline testified that he could not comment on
their conclusions because he did not know where they got their information and he did
not hire or supervise them. Mr. Kline testified that he did not know whether BHP’s draft
report or Dr. Lichtner’s study was reliable because all of the people who had evaluated
BHP’s model during the permitting process had come to the conclusion that equivalent
porous media was a reasonable assumption.
152. To some extent, Mr. Kline agreed that based on data from BHP’s pilot
project, heterogeneity existed in the well field on a small scale, but he testified that the
bedrock was highly fractured and that 98% of the fractures were ½ inch or less. Mr. Kline
opined that on a larger scale, the equivalent porous media assumption was appropriate.
Mr. Kline testified that the figure for calibrated results of hydraulic conductivity in BHP’s
draft hydrogeological study showed a conduit that was approximately 100 feet long
between the two recovery wells. See SWVP-649 at 45. Mr. Kline testified that within this
ore body, local fractures are 50 to 60 feet long. On a larger scale, the existence of a 100-
foot fracture does not mean that the equivalent porous media assumption is inappropriate.
153. Mr. Nicholls disagreed that ADEQ had unreasonably or improperly accepted
FCI’s assumption of equivalent porous media in establishing BADCT, monitoring,
reporting, and restoration requirements in the Temporary APP. Mr. Nicholls explained
that equivalent porous media is not the same as homogenous and may include a number
of fractures. Mr. Nicholls opined that the character of the ore body is a question of scale:
A small part of the oxide unit is heterogenous, but site-wide it acts as homogenous. Mr.
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Nicholls testified that although he understood that the ore body was heterogenous, aquifer
properties were defined by layers, like a cake, and that FCI’s model had ten layers with
different aquifer properties in each layer. Mr. Nicholls testified that FCI had reviewed the
number and depth of fractures and although two or three fractures may not be connected
and may impede flow, if the rock is so fractured that it is rubble, it will induce flow. Mr.
Nicholls explained that Golder Associates had evaluated the oxide unit and opined that it
would act as equivalent porous media in 1995 and that after review, USEPA’s and the
Town’s consultants agreed. Mr. Nicholls testified that before Dr. Wilson, no one had
disagreed with the propriety of the equivalent porous media assumption.
154. The Town’s consultant, Montgomery & Associates, reported that it did not
disagree with the equivalent porous media assumption, but noted the absence of
available documentation that would allow it to review FCI’s models:
Our review found no substantive flaws which would invalidate model results presented in the [FCI] report. However, documentation in the report was insufficient to conduct a thorough review of the [FCI] modeling investigation, and M&A’s scope of work did not include a detailed evaluation of the model. In addition, a complete set of modeling files was not available to conduct a review of the numerical model implementation. The potential, or lack of potential, for [PTF] operations to cause groundwater quality impacts on existing or future water supply wells near the [PTF] could not be assessed due to the lack of documentation and modeling files, and because the [FCI] model did not simulate the effects of existing or future water supply wells near the [PTF].
FC-52 at 3-4.
155. Mr. Nicholls acknowledged that he did not attempt to contact Dr. Norton or
Dr. Lichtner and that he did not review any of the studies that they cited in their reports
when he prepared FCI’s models and application for the Temporary APP. Mr. Nicholls
testified that he studied available data, but did not contact the people who worked on the
draft report, including Mr. Kline, but instead relied on his own professional judgment
when he prepared FCI’s application.
156. Mr. Kline testified that in-situ mining is an innovative technology and that
BHP’s pilot project was a pre-feasibility study. Mr. Kline characterized the draft final report
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as “an embarrassment” because the analytical process was stopped in the middle, the
report was missing parts, there were unexplained graphics, the report had multiple writers,
and the report was not peer-reviewed.
157. Dr. Wilson acknowledged that BHP’s draft report included incomplete
sections and that the report’s Project Conclusions and Recommendations section was
blank. See SWVP-649 at 59 and 174. Dr. Wilson acknowledged that BHP’s draft report
was never finalized or peer-reviewed.
158. Mr. Kline testified that when BHP’s pilot project was shut down, a
substantial amount of data had been collected by staff, including logs and daily data in
spreadsheets, and that all of the information was kept on one computer. Mr. Kline does
not know what happened to the computer, which he last saw in BHP’s office in 2000 or
2001, but when he returned in 2011, the computer, backup data, and some file cabinets
were gone.
159. The 1999 draft BHP report also noted the equivalent porous media
assumption in groundwater models may limit the accuracy of the geochemical model, in
relevant part as follows:
The amount of dilution required by geochemical models has not been successively simulated by flow and transport models constructed to date. Conversely, the chemical reaction paths that are implicit in the transport models are incompatible with static and transport reaction models discussed in this study. This duality between the geochemical and hydrogeological view of the test data must be at least conceptually reconciled before attempting a second leach test. The concepts advanced by Norton (Appendix VI-13) provide a good starting point to . . . working toward a new paradigm.
SWVP-649 at 154. Mr. Kline testified that he did not know who wrote this conclusion,
but that BHP would have run another test if it had been necessary and time had
permitted.
160. Mr. Johnson testified that FCI only relied on BHP data or reports that were
stamped and certified by a registered professional. Mr. Johnson acknowledged that on
June 12, 2012, he had written a letter to the Arizona Corporation Commission that
stated that he had “extensively studied the groundwater modeling for this project” and
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had “reviewed the historical data associated with the in-situ copper recovery production
test.” SWVP-491 at 2.
161. Dr. Wilson did not agree with the final statement in BHP’s draft report that
“[i]n summary, the approach of equivalent porous media embedded significant discrete
features matches the field data very well in such a highly fractured and heterogeneous
rock, as was found by Neuman (1982).” SWVP-649 at 45 § 4.3. Dr. Wilson explained
that the statement was inconsistent with other statements in the report.
162. When Dr. Wilson was asked whether ADEQ would have been required to
make further inquiry if BHP had done “slap-dash” work, he responded that BHP was one
of the largest and most reputable mining companies in the world. Dr. Wilson explained
that the point was not to criticize BHP, but to view its work as a scientist in evaluating
FCI’s application for an APP for an ISCR mine in virtually the same location using virtually
the same process. Dr. Wilson testified that even though BHP had complied with permit
conditions, it lost hydraulic control and allowed the migration of fluid and that something in
the geology or hydrology of the site had allowed fluid to escape.
163. Dr. Wilson acknowledged that FCI attached to its application for the
Temporary APP Golder Associates’ February 12, 1996 Data Report for Initial
Interpretation of the Hydraulic Tests at the Florence Mine Site. See ADEQ-1 at 1324.
Golder Associates’ report concluded that “[n]one of the Florence tests analyzed so far
have shown a response that could be associated to [a different model and that] all of the
tests analyzed to date have hydraulic responses typical of porous media flow.” ADEQ-1
at 1354. Dr. Wilson acknowledged that FCI’s consultants, Brown and Caldwell and its
successor, Haley & Aldrich, agreed that the equivalent porous media assumption was
appropriate.
164. Dr. Wilson testified that BHP’s draft reports also indicated heterogeneity in
the depth of the flow. See SWVP 792 at 44 (referring to SWVP 637 at 47). Dr. Wilson
explained that acid injected into the aquifer will respond by going outward and upward.
Dr. Wilson testified that BHP had measured the direction of groundwater flows with
bromide vectors, which showed flows to the north and west. The longest vector by 15%
was to recovery well BHP-8, due west of the injection site, and the second longest vector
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was to recovery well BHP-7, due north of the injection site. See SWVP-792 at 52
(referring to SWVP-596 at 19, SWVP-649 at 43).
165. In response to Dr. Wilson’s testimony about BHP’s bromide test, Mr.
Nicholls testified that the tests were performed after active injection and that groundwater
was drawn in by pumping different wells during rinsing. Mr. Nicholls acknowledged that
the results of the tests may show heterogeneity, but stated that other variables could
explain the results, for example, the distance between the bromide source and well BHP-8
directly to the west was approximately 50 feet, but the distance between the bromide
source and BHP-4 directly to the northwest was approximately 70 feet. Mr. Nicholls
testified that there were different pumping rates and BHP recovered a high percentage of
the bromide. Mr. Nicholls noted that the model provided to USEPA for groundwater flow
without hydraulic control showed a consistent flow to the northwest.
166. Dr. Wilson acknowledged that neither ADEQ nor USEPA had found any
environmental law or permit violations at BHP’s pilot project. Dr. Wilson testified that
although ADEQ and USEPA never found any contamination in the LBFU that exceeded
permit terms, BHP’s permit did not require it to report the concerns noted in its draft
reports about low pH at observation wells, vertical migration of fluid into the LBFU, or any
data that did not support the equivalent porous media assumption.
167. Mr. Brown testified that BHP kept a relatively complex history of activity at
the pilot project and that all available evidence indicated that BHP maintained hydraulic
control as defined by its APP by maintaining an inward hydraulic gradient and pumping
more fluid than was injected. See FC-74 at 15-19. Mr. Brown noted that BHP’s pilot
project maintained inward gradient 97.7% of the time and rapidly responded when
gradient was lost, effectively maintaining hydraulic control 100% of the time. Mr. Brown
testified that Darcy’s law provides that when inward gradient exists, it causes water to
be drawn into the well from the sides and the top.
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3.6.3 Similarities and differences between BHP’s pilot project and FCI’s PTF
168. As noted above, BHP’s APP No. 101704 allowed it to operate a commercial
mine over 212 acres, with the first stage consisting of a pilot project over approximately
two acres. See SWVP-254 at 11-12 and SWVP-257 at 7. FCI’s 2.2-acre PTF well field
is located a little less than one-half mile northwest of the site of BHP’s 1997-98 pilot
project. FCI’s application proposed to use infrastructure that BHP had constructed for its
commercial mine, including six POC wells and an impoundment pond. See SWVP-792 at
20; ADEQ-1 at 601.
169. The process of ISL mining at BHP’s pilot project and at the PTF both
involve 5-spot patterns of wells in which sulfuric acid solution is injected through an
injection well surrounded by four recovery wells that are designed to pump out what
remains of the solution after it has dissolved the copper.
170. BHP’s well field consisted of four injection wells and nine recovery wells,
including a recovery well in the center of the well field, and five observation wells that
would measure groundwater levels to demonstrate hydraulic control. BHP also had two
Westbay wells. See SWVP-792 at 14.
171. The PTF well field will consist of four injection wells and nine recovery
wells, including one in the center of the well field, in 5-spot patterns. The PTF well field
includes seven observation wells and four Westbay wells around the recovery well in
the center of the well field. See SWVP-792 at 30. The observation wells downgradient
of the injection wells can be used as recovery wells as necessary to maintain hydraulic
control. See ADEQ-7 at 4 § 2.2.4. FCI will use the Westbay wells to obtain proprietary
or operational data.
172. The key feature of both BHP’s pilot project and the PTF is the injection of
sulfuric acid solution to dissolve the copper deposit. FCI will inject a lixiviant solution of
99.5% water and .5% sulfuric acid into the oxide unit of the aquifer. See ADEQ-7 at 2 §
2.1.
173. Mr. Johnson testified that in both BHP’s pilot project and FCI’s PTF, lixiviant
would marinate to dissolve the copper into solution so that it can be extracted as PLS by
the recovery wells.
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174. Both BHP’s permit and the Temporary APP only allowed lixiviant to be
injected 40 feet below the top of the oxide zone and required that more fluid be
recovered than was injected and that an inward hydraulic gradient be maintained for
hydraulic control.
175. As noted above, unlike BHP’s permit for the pilot project, which protected
only the UBFU and allowed migration of fluid into the LBFU, the Temporary APP
requires FCI to prevent migration of solution from the oxide unit into the LBFU.
176. FCI’s PTF will be different from BHP’s pilot project in certain respects,
including the following: (1) FCI’s PTF has a thicker ore zone, which is better for copper
recovery but also will make interpreting monitoring data more difficult; (2) FCI plans to drill
deeper wells than BHP had drilled; (3) FCI’s well design is different and more expensive
from BHP’s because, among other things, it requires stainless steel rather than PVC
casing; (4) Although BHP had injected over the entire length of the screened intervals in
the injection wells below the 40-foot exclusion zone, FCI will limit the area of injection by
using packers;25 (5) Although BHP had nine recovery wells for hydraulic control, FCI will
have nine recovery wells, plus up to four observation wells that can be converted to
recovery wells if necessary; (6) FCI will use a SX/EW plant to recover copper, recycle
water and solution, produce copper plate, and possibly avoid the water management
difficulties that BHP experienced; and (7) BHP’s groundwater flow and fate and transport
models did not include any known faults in its pilot project well field, but FCI’s models
includes the three known faults in the PTF well field.
3.7 Possible loss of hydraulic control and migration of fluid
3.7.1 FCI’s assumption of equivalent porous media in its groundwater flow and fate and transport models
3.7.1.1 ADEQ’s review of FCI’s groundwater models (appeal issues
32 and 38)
177. Dr. Wilson testified that he was able to obtain FCI’s modeling files for the
PTF from USEPA, but that ADEQ was not able to produce such files in response to
Appellants’ public records request.
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178. Mr. Nicholls testified that the only modeling that FCI performed for ADEQ
was to calculate the Discharge Impact Area (“DIA”).26 FCI performed modeling for
USEPA that simulated pumping, injection, and well-to-well flow. Based on Golder and
Associates’ report, FCI assumed that the oxide unit would function as equivalent porous
media and that flow would disperse rather than channelize.
179. Mr. Nicholls testified that FCI’s models included the three known faults at
the PTF well field. See SWVP-397 at 40. Mr. Nicholls prepared the hydrologic study
that was attached as Exhibit 14A to FCI’s application. See ADEQ-1 at 625. The report
set forth various vertical and horizontal hydraulic conductivities for the 10 layers and
faults in the model. See ADEQ-1 at 699. Vertical hydraulic conductivity for the LBFU
was between .5 feet to 2.5 feet/day and vertical hydraulic conductivity for the faults was
2.51 feet/day. Mr. Nicholls testified that he used the same hydraulic conductivity for
every layer in the model, except where faults cut through the layer.
180. Mr. Nicholls estimated hydraulic conductivity to be .57 feet/day in layer 7
in the entire 125 square miles of the model area. See ADEQ-1 at 679. Layer 7 in FCI’s
model is the top layer of the oxide unit, where injection will occur, directly beneath the
exclusion zone. See ADEQ-1 at 687. Mr. Nicholls did not use the results of BHP’s
bromide test because the scale of BHP’s pilot project was too small and Mr. Nicholls
could not reproduce the data. Instead, Mr. Nicholls chose a 125-square-mile area to
consider the recharge from the Gila River and the effects of large-scale pumping. Mr.
Nicholls testified that FCI simulated the DIA on a much larger scale than the PTF
because USEPA had asked FCI to run simulations on a regional model and ADEQ had
not asked for a smaller scale model.
181. Dr. Wilson testified that FCI’s model was a privately developed version of
Modflow that was based on the United States Geological Survey’s model. Dr. Wilson
disagreed with the groundwater model specifications in FCI’s application because the
model had never been tested with other assumptions and because based on isolated
oxide zone data, FCI had used a uniform K of .57 for layer 7 of its model. Dr. Wilson 25 Testimony at the hearing indicated that “packers” are inflatable devices that FCI will use in the injection wells to block screened intervals into which it chooses not to inject lixiviant. 26 “‘Discharge impact area’ means the potential areal extent of pollutant migration, as projected on the land surface, as the result of a discharge from a facility.” A.R.S. § 49-201(13).
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noted that data showed that there was higher hydraulic conductivity in layers 7-8 than in
9-10. See ADEQ-1 at 698. Dr. Wilson acknowledged that the K value of 0.57 was used
only in layers 7 and 8, less than half of the oxide zone and that layer 6 had a K value of
1.0. Dr. Wilson testified that although there was a little bit of heterogeneity in FCI’s
model, it was nothing like what was observed at BHP’s pilot project.
182. Mr. Brown disagreed that ADEQ had unreasonably and improperly
accepted FCI’s assumption of equivalent porous media in establishing BADCT,
monitoring, reporting, and restoration requirements. Mr. Brown testified that during his
40-year career, well-settled science applied the equivalent porous media assumption to
a large, densely jointed, fractured media. Mr. Brown’s report stated as follows:
This is not to say that heterogeneities in hydrogeologic systems can be ignored. It is to say that where the size of the hydrostratigraphic domain is large compared to the fracture spacing, each domain may be considered as a heterogeneous equivalent porous medium.
FC-25 at 31. Mr. Brown testified that Florence falls within the area where
heterogeneities cannot be ignored, but that FCI considered the known faults in its
application. Mr. Brown testified that because testing individual fractures was more
difficult, the model needed to be symmetrical to make it more robust.
183. Mr. Smit testified that during the comment period, ADEQ’s senior
hydrologist, Mason Bolitho, reviewed modeling results and the equivalent porous media
assumption and did not express any concerns about FCI’s use of the assumption in its
models.
184. Mr. Bolitho acknowledged that he had reviewed modeling for the Temporary
APP, including the equivalent porous media assumption. Mr. Bolitho testified that he is
not a modeler and did not verify the data or assumptions that FCI used in its fate and
transport model.
185. Mr. Smit acknowledged that on September 11, 2011, ADEQ requested that
FCI address certain hydrological deficiencies in the application for a significant
amendment, including that pursuant to A.A.C. R18-9-A202(A)(4), FCI should “summarize
and provide a table to convey information regarding, the known past facility discharging
activities (i.e. 1997 pilot test).” SWVP-310 at 3. ADEQ specifically requested that FCI
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provide “[c]onclusions obtained from the pilot test.” SWVP-310 at 3. Mr. Smit
acknowledged that the results of the 1997-1998 BHP pilot project were relevant to FCI’s
models, but testified that BHP’s project was local and that he did not know whether it
applied to the PTF well field.
186. Mr. Smit testified that FCI’s application for the Temporary APP
summarized the past activities of BHP. See ADEQ-1 at 401 (Attachment 10). Although
Attachment 10A to the application summarized BHP’s hydraulic control tests and review
of groundwater sampling results, FCI did not include BHP’s draft reports or conclusions.
See ADEQ-1 at 411.
3.7.1.2 Possible spatial bias in FCI’s groundwater models (appeal issue 80)
187. FCI’s application for the Temporary APP included a map of measured
groundwater elevations, which Dr. Wilson testified was the domain of the groundwater
flow model. See ADEQ-1 at 667; SWVP-792 at 120. Dr. Wilson testified that the area
where flows were measured was large compared to the area of the PTF well field. Dr.
Wilson testified that although hydrologists usually begin with a regional model, they make
the model finer with a grid because it is important that the model match the data from the
specific area where it will be used.
188. FCI’s application for the Temporary APP included Figure 14A-27, which
was a photograph of the area used in Brown and Caldwell’s hydrological study for the flow
model with differently sized brown or blue dots showing differences between the water
levels that the model predicted and the actual measured levels and whether differences
were positive or negative. See ADEQ-1 at 684 (incorporated at SWVP-792 at 122). FCI’s
application included a definition of residuals and discussed their significance, in relevant
part as follows:
A residual is defined as the observed (or field-measured) water level minus the simulated water level at the same location. Positive residuals represent a model-calculated head value that is lower than the observed head value, and negative residuals represent a model-calculated head value that is higher than the observed value. A residual value of 0 represents a perfect fit between the model-calculated and observed values. During calibration, the goal is to minimize
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the residual statistics while remaining within the acceptable range for water budget components, hydraulic parameters, and flow regime requirements. Plotting the residuals on a map with simulated water level contours provides an indication of the spatial distribution of model error and helps guide the calibration process. Trends in the distribution of error, such as clusters of values that are all too high or too low, indicate spatial bias. The spatial distribution of PTF model residual values for 2008-2010 is shown on Figure 14A-27 along with simulated water levels. . . .
ADEQ-1 at 651 § 14A.5.3.1.
189. Dr. Wilson testified that although models always contain some error, he was
concerned that large discrepancies in the same direction were clustered around the PTF
well field in FCI’s model. Dr. Wilson testified that the reported discrepancies did not affect
the flow model but rendered the fate and transport model’s prediction of the contamination
plume, or DIA, problematic because large discrepancies in the same direction around the
well field raised questions about whether the model was properly calibrated.
190. Mr. Brown defended the calibration of FCI’s model by submitting a plate
that showed that the dots on Brown and Caldwell’s study were sprinkled evenly around
the line of best fit. See FC-25 at 158, Plate 79-2. Mr. Brown and Mr. Nicholls testified
that FCI’s calibration of the groundwater flow model was performed in accordance with
the standards of the American Society for Testing Materials (“ASTM”). Mr. Brown
testified that ASTM D-2622 required calibration to get the best fit between the real data
and the model.
191. Neither ASTM D-2622 nor any other ASTM provision was read into the
record or submitted into evidence. Dr. Wilson testified that in his 40 years of performing
modeling and reviewing permits, he has found that ASTM standards are too generalized
to be of value.
192. Mr. Nicholls testified that FCI calculated calibrations based on 1,140
calibration targets taken between 1984 and 2010, as well as 16 years of quarterly reports
from BHP’s pilot project. Mr. Nicholls testified that the off-site targets were irregular and
depended on ADWR’s records, but that FCI’s calibration fluctuation of 3% met the
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industry standard of less than 5% variation. Mr. Nicholls explained that FCI did not go to
a smaller scale model because it would not have included sufficient data sets. Mr.
Nicholls opined that the data from BHP’s pilot project did not apply to the 1,200-acre
site.
193. Mr. Nicholls acknowledged that FCI’s model extended 5 miles to the west,
north, south, and east of the PTF well field, that the well field was only 200 feet x 200
feet, and that there may be some heterogeneities due to the small scale in the well field.
Mr. Nicholls acknowledged that as a model simulates groundwater elevations over time,
differences between observed and predicted elevations could be important to the
accuracy of the model.
194. Dr. Wilson added red lines to Mr. Brown’s Plate 79-2 to show the extent
and consistency of the observed groundwater elevations exceeding the model
predictions around the PTF well field. See SWVP-832 at 4. Dr. Wilson testified that
because FCI’s model was so big, the model was accurate on a large scale, but that the
model was not accurate on the smaller scale of the PTF well field. Dr. Wilson plotted
the difference between observed and modeled elevations and calculated the amount of
variation (r2) at the PTF well field of .76. Dr. Wilson testified that .76 was not a good fit
for this small a model.
195. Dr. Wilson testified that because Mr. Brown’s Plate 79-2 used averages,
he asked Southwest to go to the source data and to plot individual data from the oxide
layer that corresponded to Mr. Brown’s averages. See SWVP-832 at 6. Dr. Wilson
explained that a “Y” value of 1.0000 would be a perfect match, that the r2 value of 0.76
was not too bad for a large model, but that the r2 value in the graph without averaging
was .6. See SWVP-832 at 5. Dr. Wilson testified that the r2 value of .6 indicated that
almost 40% of the error was not explained by FCI’s model. See SWVP-832 at 6.
196. Dr. Wilson noted that FCI’s witnesses agreed that the site was
heterogenous on the scale of the PTF but asserted that on the scale of the commercial
mine, errors in predicted flow would cancel each other out. Dr. Wilson noted that on the
edge of the large commercial mine, errors in predicted flow in specific cells do not
cancel each other out because in the commercial mine, the amounts of water injected
and pumped will be the same on the interior of the well field, but perimeter pumping
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wells are intended to create a “moat” to maintain hydraulic gradient. See SWVP-832 at
32. Dr. Wilson opined that because the perimeter wells would be placed on the edge of
the commercial mine to achieve hydraulic control, ADEQ needed to obtain data from the
PTF about whether the site was heterogenous or equivalent porous media on the scale
of the PTF. See SWVP-832 at 33.
197. To illustrate his concern, Dr. Wilson overlaid the illustration of the short
circuit from BHP’s pilot project over a map of the planned commercial mine. See
SWVP-832 at 34, 35. Dr. Wilson testified that a short circuit could be significant in the
commercial mine because the perimeter wells were some distance from injection and
recovery wells and the observation wells were an even greater distance away. See
SWVP-832 at 36. Dr. Wilson explained that heterogeneity persists in the commercial
mine because many locations have potential for short circuits.
3.7.1.3 The aquifer pump test prior to injection (appeal issues 24 and 26)
198. Section 2.7.4.3 of the Temporary APP requires FCI to perform an aquifer
pump test prior to beginning injections at the PTF, in relevant part as follows:
The permittee shall submit within 30 days of completion of aquifer pump test and prior to beginning operation of the Pilot Study, the results obtained from the aquifer pump test using wells in and around the PTF in accordance with the Compliance Schedule (Section 3.0). The Aquifer Pump Test Report shall discuss and evaluate the feasibility of the proposed Pilot Test using data obtained from pump tests at the PTF wells. The evaluation shall verify previously calculated aquifer properties such as hydraulic conductivity, transmissivity, groundwater velocity, etc. and the validity of the porous medium assumption used in the groundwater modeling for the oxide unit.
ADEQ-7 at 21.
199. Dr. Wilson testified that heterogeneity in the oxide unit had one effect on the
flow model and another effect on the fate and transport model. Although FCI had
included the three known faults in its models, both of FCI’s models were premised on the
assumption of equivalent porous media. Dr. Wilson testified that because the Temporary
APP did not specify the nature of the aquifer pump test, the results of test would not
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necessarily resolve the issue of the appropriateness of FCI’s assumption of equivalent
porous media in its fate and transport model.
200. Dr. Wilson submitted a graphic of hydraulic conductivity in BHP’s well field
from the Summary of the BHP Copper Florence ISL Field Test and Updated Work that
SRK Consulting (U.S.), Inc. (“SRK”) prepared for FCI in 2010. See SWVP-792 at 125;
SWVP-639 at 68. Dr. Wilson noted that SRK reported six hydraulic conductivity zones in
BHP’s well field with K values ranging from .01 to .85. The wells on the north side of
BHP’s well field, BHP-3, BHP-11, BHP-4, and BHP-2, showed the lowest values for
hydraulic conductivity. Because SRK’s chart showed a large change in conductivity over
a short distance, Dr. Wilson opined that FCI should perform aquifer pump tests to
measure not just the pumping wells but the other wells in the PTF well field to fully
evaluate the validity of the equivalent porous media assumption.
201. Ms. Widlowski testified that the aquifer pump test at the beginning of the PTF
would provide basic information about flow but not necessarily flow direction or full
information about whether the oxide unit was heterogenous or equivalent porous media.
202. Mr. Bryan testified that the aquifer pump test would provide adequate
information to ADEQ. Mr. Bryan testified that a key requirement was that FCI had to
submit the report of the pump test report before beginning PTF operations. Mr. Bryan
explained that the aquifer pump test was important to FCI’s operations but not to ADEQ’s
regulatory processes and that in any event, ADEQ would not perform an independent
analysis of the results of FCI’s aquifer pump test.
3.7.2 Maintaining hydraulic control by maintaining a 1-foot inward hydraulic gradient and pumping more fluid than was injected (appeal issues 36, 37, 43, and 80)
203. The Temporary APP provides that “[h]ydraulic control over the injected
solutions shall be maintained during the operating life of the facility. In-situ solutions shall
be injected and contained in the oxide unit.” ADEQ-7 at 4 § 2.3.1. The Temporary APP
also provides as follows:
The PTF operation relies on hydraulic control of the ISCR solutions to demonstrate BADCT. Hydraulic control shall be confirmed through the use of observation wells to maintain an inward hydraulic gradient. An inward hydraulic gradient
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shall be measured by water level elevations in injection, recovery [and] observation wells. The rates of injection and recovery shall be continuously monitored and controlled so that the total volume of solution recovered is greater than the volume of solution injected, averaged over [a] 24 hour period. . . .
ADEQ-7 at 4 § 2.2.4. 204. The Temporary APP requires FCI to maintain hydraulic control by
pumping recovery wells at a greater rate than the injection rate “to maintain a cone of
depression.” ADEQ-7 at 30 (Table 4.1-1); ADEQ-7 at 2 § 2.2 (citing A.R.S. § 49-243(B)
and A.A.C. R18-9-A203). The Temporary APP requires FCI to maintain at least a 1-
foot inward hydraulic gradient and establishes the following ALs for BADCT monitoring:
Parameter Monitoring Frequency
Alert Level Reporting Frequency
Injection Rate of well field
Monthly average
When Greater than 240 gpm
Monthly
Recovery Rate of well field
Monthly average
Maximum 300 gpm
Monthly
Recovered Volume to Injected Volume
Daily Recovered Volume is less than Injected Volume
Weekly
Inward Hydraulic Gradient
Daily average
Less than 1-foot differential as a daily average
Weekly
ADEQ-7 at 41 (Table 4.1-8) (footnote omitted). The Temporary APP requires FCI to
monitor four unspecified pairs of observation and recovery wells to calculate the
minimum 1-foot inward hydraulic gradient. See ADEQ-7 at 41 Table 4.1-8. The
Temporary APP does not require that the amount of recovered fluid exceed the amount
of injected fluid by any measured volume or that more than a 1-foot inward hydraulic
gradient be maintained as a daily average.
205. Section 2.7.4.4 of the Temporary APP requires FCI to submit the following
monitoring reports to ensure that it maintained hydraulic control at the PTF:
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The permittee shall submit quarterly reports concerning the operations and monitoring of the PTF during the 14-month mining and 9-month rinsing phase to the ADEQ Groundwater Section (GWS). Quarterly reports shall be submitted no later than 30 days following the end of each calendar quarter. The quarterly report shall demonstrate whether the hydraulic control was maintained at the PTF during the quarterly monitoring period. Hydraulic control shall be demonstrated by, including but not limited to, the following: a continuous inward hydraulic gradient by pumping more solution out than went in, maintaining the fracture gradient, and compliance with the ALs and AQLs at the POCs. The report shall include: 1. A graphical representation of the volumes extracted and
injected used to maintain hydraulic control. In the event that more solution was injected than recovered for a 24-hour period, or in the event that any of the instruments used to measure the flow volumes malfunction or are out of service for more that 24 consecutive hours, the permittee shall submit a report showing for each day of the quarterly reporting period, the hydraulic gradient was maintained.
2. A graphical representation that a continuous inward
hydraulic gradient was maintained using water level elevations in the PTF. The reports shall include a graphical presentation of head comparisons for each pair of observation and recovery wells used to monitor the hydraulic gradient. The report shall also include a figure showing the location and identity of each of the paired wells. In the event any one of the well pairs indicate a flat or outward hydraulic gradient for a 24-hour period, or in the event that any of the instruments used to measure the hydraulic gradient malfunction or are out of service for more than 24 consecutive hours, the permittee shall submit a report showing for each day of the quarterly reporting period, the daily flow into and out of the mine block. Hydraulic control shall also be demonstrated through the submittal of potentiometric groundwater contour maps which depict the monthly minimum, monthly average and monthly maximum inward hydraulic gradient toward the recovery wells (i.e. cone of depression) using groundwater elevations collected at the PTF well field.
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3. A summary of pressure transducers readings and fracture gradients readings.
. . . . 8. Groundwater elevation contour maps for each quarterly
monitoring period, including the groundwater elevation obtained from the underground workings. The contour maps shall identify, if known, any wells that were pumping within a half-mile radius of the PTF.
ADEQ-7 at 21-22.
206. Mr. Bryan testified that although the Temporary APP requires FCI to report
total net pumping, ADEQ is not concerned about how FCI calculates the total net
pumping. Mr. Bryan did not know whether the total would be calculated at each 5-spot
pattern or overall and acknowledged that the APP did not specify paired wells or how the
average would be calculated. See ADEQ-8 at 260 (chart K-1). Mr. Bryan acknowledged
that all but four recovery wells were assigned to more than one injection well in a 5-spot
pattern.
207. Mr. Bryan explained that the minimum 1-foot inward gradient was selected
because ADEQ wanted to make sure that there was a sufficient visual representation.
One millimeter would have been too difficult to ascertain, but 1 foot was significant enough
for FCI to maintain and ADEQ to monitor.
208. Mr. Bryan acknowledged that because the 1-foot differential was an
average, the level in an observation well could be higher than in the paired recovery well
some times during the day, but ADEQ would only know the average. Mr. Bryan
acknowledged that if FCI did not maintain a 1-foot inward gradient or pump more than it
injected, solution could leave the PTF well field.
209. The Temporary APP did not specify the method by which FCI would
measure water elevation to calculate inward gradient. Mr. Bryan acknowledged that
because the recovery wells were pumping wells, they would draw water down and that
due to well inefficiencies, the measured level of recovery wells would not be the same as
the aquifer level. The APP did not require FCI to correct for well inefficiencies. Mr. Bryan
explained that pumping creates a low pressure zone regardless of well inefficiencies and
that he expected the fluid to flow into the low pressure zone.
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210. Mr. Nicholls testified that well loss as a function of efficiency is a well
understood principle and that well losses can reduce the cone of depression but will not
eliminate low pressure. Mr. Nicholls testified that during BHP’s pilot project, inward
gradient was between 7 feet and 40 feet and that he did not expect FCI to operate the
PTF with only a 1-foot inward gradient, but expected the differences in the paired wells’
elevations to be at least as large as at BHP’s pilot project.
211. Mr. Bryan noted that FCI’s application stated that hydraulic control would be
maintained through BADCT and the SX/EW plant:
[C]opper-bearing PLS produced by the reaction of the lixiviant with minerals in the [Injection and Recovery Zone (“IRZ”)] will be pumped from the IRZ via recovery wells and conveyed via pipeline to the PLS tanks, and then into the SX/EW plant for the recovery of copper. Processed solution from the SX/EW plant (i.e., raffinate) will be prepared for re-injection as lixiviant and re-circulated back to the well field for injection. A portion of the raffinate from the SX/EW plant (i.e., raffinate bleed) will be neutralized and placed in the water impoundment as needed to maintain both hydraulic and chemical balance of raffinate required for injection.
ADEQ-1 at 570. Table 9A-1 specified the manner by which the volumes injected and
recovered and inward hydraulic gradient would be measured by flow meters and
transducers. See ADEQ-1 at 240-241.
212. The design documents at § 9A.3.4.2.3 of FCI’s application described the
recovery system, including the following:
The recovery system comprises the individual wells, pumps, and headers at each recovery well and a recovery manifold. Mechanical controls and monitoring devices incorporated into the recovery system include: • a continuous reading flow meter (gallons per minute) at the recovery manifold; • a totalizing flow meter (gallons) at the recovery manifold; • an isolation valve at each recovery well; • a flow switch at each recovery well; and
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• a pressure transducer within selected recovery wells. The flow meters on the recovery manifold will allow the operators to regulate flow as necessary to ensure that net flow out exceeds net flow in. Contingency conditions and associated response actions for the recovery system are summarized in Table 9A-1. Rapidly changing conditions affecting the recovery well system such as a faulty pump clogging, or recovery well failure will be addressed in one of two ways. The primary safeguard will be mechanical. Fluid level measurements in the recovery well array will be maintained by use of a pressure transducer installed in selected wells, including recovery wells. The pressure transducer will activate an alarm whenever the fluid level is too high or too low. A low-level alarm will result in an automatic shutdown of the pump to prevent pump damage. In the event of a recovery well problem in which the alarm is not triggered, operators would be made aware of the problem by lower-than-normal flow rates out of the well header. The longest period of time in which such a condition could go unnoticed would be 24 hours.
ADEQ-1 at 234. Each injection and recovery well will have two flow meters to ensure that
a cone of depression is maintained.
213. Mr. Bryan noted that the application also referred to flows in the total well
field, not just each 5-spot pattern, in relevant part as follows:
As indicated above, hydraulic control is maintained by pumping more solution from the IRZ than is injected into the IRZ, and is used to prevent the in-situ solutions from migrating beyond the IRZ. Flow meters will be used on a daily basis, for ensuring that the volume of solution pumped from the IRZ exceeds the amount injected into the IRZ. In addition, the presence of an inward hydraulic gradient will be monitored on a daily basis by comparing the difference in water levels between four paired observation-recovery wells located in the outer portion of each quadrant of the well field. Hydraulic control will be deemed to be met if, for all well pairs, the water level in the observation well is higher than the recovery well.
ADEQ-1 at 570.
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214. FCI’s application to USEPA to amend its UIC permit provided that “Part
II.F.5 of the UIC Permit specifies that hydraulic control monitoring shall be verified by
measuring water levels at least daily at four locations approximately equidistant around
the perimeter of the IRZ.” SWVP-276 at 7. Mr. Bryan agreed that FCI’s application to
amend the UIC permit provided greater detail on the location of the four paired wells for
measuring inward hydraulic gradient. The Temporary APP referenced the UIC permit
with respect to maintaining inward hydraulic gradient for hydraulic control. See ADEQ-7
at 41 (footnote *).
215. Mr. Nicholls testified that FCI’s application and the Temporary APP both
required it to use 4 paired wells to measure inward gradient. However, FCI had agreed
in meetings with ADEQ that it would use 7 paired wells. A written agreement was not
submitted.
216. Mr. Brown disagreed that the contingency actions required by the
Temporary APP were inadequate or would allow significant delays in the reporting of
issues impacting groundwater quality, especially in light of the PTF’s short duration.
See FC-25 at 89-90. Mr. Brown opined that the contingency actions relating to the loss
of hydraulic control were not improperly vague and inconsistent because the Temporary
APP defined loss of hydraulic control as recovering less fluid than was injected or failing
to maintain an inward hydraulic gradient of at least 1 foot. See FC-25 at 94-95. Mr.
Brown noted that the Temporary APP specified seven contingency actions that related
to loss of hydraulic control. See ADEQ-7 at 13-14 § 2.6.2.5.
217. Mr. Nicholls testified that USEPA required FCI to perform modeling to
simulate injection without hydraulic control and to track expected migration over 48
hours. In the model, with continued injection after cessation of pumping, solution
migrated less than 200 feet horizontally. See SWVP-397 at 32. Mr. Nicholls testified
that USEPA also required FCI to perform modeling to simulate injection without
hydraulic control over 30 days. In the simulation, over 30 days, solution migrated more
than 300 feet but less than 400 feet horizontally. See SWVP-397 at 33. Mr. Nicholls
testified that USEPA’s required simulations represented worst case scenarios. Even
then, FCI’s models demonstrated that although without hydraulic control, solution
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migrated into the approximately 500-foot circumference around the PTF well field that
comprised USEPA’s area of review (“AOR”), the solution could be recaptured.
218. Dr. Wilson noted that Attachment 11 to FCI’s application provided that
“[h]ydraulic control will be maintained and monitored by ensuring that: (1) the quantity of
raffinate injected in the IRZ on a daily basis is less than the quantity of PLS and
groundwater removed from the IRZ, and (2) water levels in paired observation and
recovery wells at the perimeter of the IRZ indicate an inward gradient.” ADEQ-1 at 570.
Dr. Wilson testified that although the application and Temporary APP required hydraulic
control to be tightly monitored, they did not require any demonstration that hydraulic
control had been maintained.
3.7.3 The Temporary APP’s required monitoring for fluid loss or migration
219. Section 2.6.3.4 of the Temporary APP requires FCI to take the following
actions in the event of an unexpected loss of fluid27 in the injection or recovery wells in
the PTF well field:
In the event of an unexpected loss of fluid in the injection/recovery wells, such that fluids are released to the surface, vadose zone, or groundwater, the permittee shall: 1. Within two hours of discovery cease injection in the
affected area and/or adjust flow rates at injection/ recovery wells until an inward hydraulic gradient is reestablished and excess ISCR solutions are recovered necessary to prevent further releases to the environment,
2. Operate the recovery wells in the affected area until the
amount of fluid recovered is in excess of the amount of fluid injected during the 24 hour period,
3. Within 24 hours of discovery, notify ADEQ Water Quality
Compliance Section. 4. Inspect relevant components such as injection, recovery
lines, pumps, flow meters, flow totalizers, pressure 27 The Temporary APP referred to “an unexpected loss of fluid.” Witnesses referred to both “fluid” and “solution.” “‘Process solution’ means [PLS], barren solution, raffinate, or other solution uniquely associated with the mining or metals recovery process.” A.A.C. R18-9-101(31). The terms “fluid” and “solution” are used interchangeably in this decision, unless the context requires otherwise.
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gauges, pressure transducers and other associated facilities,
5. Verify proper operations of all facilities within the in-situ
leach area, 6. Within 24 hours of discovery, initiate an evaluation to
determine the cause for the incident. Identify the circumstances that resulted in the failure and assess the condition of the well. Implement corrective actions as necessary to resolve the problems identified in the evaluation. Initiate repairs to any system, structure, or other component as needed to restore proper functioning of the well. The permittee shall not resume injecting or discharging until repairs of any failed structure are performed and tested as applicable. Repair procedures, methods, and materials used to restore the system(s) to proper operating condition shall be described in the facility log/recordkeeping file and available for ADEQ review. The facility log/recordkeeping file shall be maintained according to Section 2.7.2 (Operation Inspection / Log/Recordkeeping File).
7. Submit a written report within thirty days to ADEQ as
specified in Section 2.7.3 (Permit Violation and AL Status Reporting) describing the incident and the corrective actions taken. Upon review of the report, [ADEQ] may require an amendment to the permit to require surface, vadose zone or groundwater monitoring, require installation of additional POCs, increased frequency of monitoring, remedial actions, amendments to permit conditions or other actions.
8. Within 30 days of discovery, conduct an assessment of
the impacts to the surface, vadose zone and/or groundwater resulting from the incident. If soil or groundwater is impacted, submit to ADEQ, for approval, a corrective action plan to address such impacts, including identification of remedial actions and/or monitoring, and a schedule for completion of activities. The corrective action plan shall be submitted within sixty days of the incident. At the direction of ADEQ, the permittee shall implement the approved plan.
ADEQ-7 at 17.
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3.7.3.1 Limited monitoring in PTF well field (appeal issues 28, 30, 40, 43, and 85)
220. Ms. Widlowski and Mr. Bryan both testified that Temporary APP § 2.3.1
required solution to be contained in the oxide zone and that if FCI allowed solution to
migrate into the LBFU, FCI would violate the APP, even if the solution was later drawn
back into the cone of depression. See ADEQ-7 at 4 § 2.3.1.
221. Ms. Widlowski cited ADEQ’s response to SWVP’s comment to support the
sufficiency of monitoring required by the Temporary APP to prevent contaminants from
migrating into the LBFU:
The interface between the LBFU and Oxide Unit is depicted on cross sections as a relatively steep geologic interface. One has to take into consideration the scale depicted on the numerous cross sections of Figures in the Application. For example, on Figure 14C-50 of the Application, the nearest LBFU/Oxide interface where the geologic contact starts to slope downward, relative to location of the injection well field, is approximately 200 feet west from the edge of the PTF well field. The scale on this Figure is equal in the vertical and horizontal direction, at approximately one inch is equal to 200 feet vertically or horizontally. This implies there is over 200 feet of subsurface horizontal distance to the nearest LBFU/Oxide contact. In addition to injection and recovery wells being installed with surface seals consisting of cement from the surface to the top 40 feet (i.e. exclusion zone) below the top of the Oxide Unit, over 200 foot subsurface horizontal distance exists between the injection zone and LBFU/Oxide contact. Extraction wells, observation wells and a monitoring well will be place[d] between the injection wells and the geologic contact to prevent the solution migrat[ing] into the LBFU.
ADEQ-10 at 216 (emphasis in original). Ms. Widlowski testified that the monitoring and
reports required by § 2.7.4.4 of the Temporary APP provided multiple levels of
protection28 and that monitoring well MW-0129 and the closure requirements provided
additional protection.30 See ADEQ-7 at 9 and 21.
28 The requirements of this section are quoted at Finding of Fact Nos. 205 above and 243 below. 29 The requirements for MW-01 are quoted at Finding of Fact No. 257 below. 30 The requirements for closure are quoted at Finding of Fact Nos. 365 and 383 below.
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222. Mr. Bryan acknowledged that volume measurements might indicate a loss
of hydraulic control, but that because the PTF has an extraordinarily small well field, the
Temporary APP did not require FCI to monitor possible vertical escape of solution into the
LBFU.
223. Section 9A.3.1.3 of FCI’s application provided that the screened interval
would vary in length at each well and might include one or more screened segments
within the broader injection interval. See ADEQ-1 at 230. Ms. Widlowski acknowledged
that because all of FCI’s injection wells were screened in the oxide unit, sampling would
not occur in the LBFU and that until closure, ADEQ would not be able to gauge the
impact of the PTF on the LBFU.
224. Mr. Smit acknowledged that ADEQ assumed that if FCI maintained an
inward gradient and ensured that the volume of recovered solution exceeded the volume
of injected solution averaged over a 24-hour period, fluid would not escape. Mr. Smit also
acknowledged that the Temporary APP did not require FCI to monitor or to report to
ADEQ if contaminants reached the observation wells or the LBFU.
225. Mr. Nicholls was involved in drafting FCI’s response to USEPA’s request
for information. Mr. Nicholls’ attention was drawn to USEPA’s Comment 11 that “there
is insufficient discussion of potential vertical migration of native fluids due to elevated
pressure at the injection well and drawdown at the recovery wells.” SWVP-397 at 15
(emphasis in original). In response to this comment, FCI submitted Figures 9.1 and 9.2,
which it described in its response to Comment 11 as follows:
Figures 9-1 and Figure 9-2 provide cross-sectional views of the extent of vertical migration of injected fluid under steady state injection and recovery conditions at the end of a 14-month period of operations. As shown on Figure 9-1, which represents a west-facing cross-sectional view, injected fluid migrates upward approximately 40 feet into the exclusion zone after 14 months of operating conditions, and does not reach the LBFU along this transect. Figure 9-2 provides a north-facing cross sectional view of the extent of vertical migration at the end of PTF operations. Along this west-to-east transect, injected fluid is simulated to migrate upwards approximately 40 feet into the exclusion zone and approximately 54 feet into the LBFU, within a very limited lateral extent. In summary, model results indicate that
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mounding of injected fluid is limited to the 40-foot thick exclusion zone, but trace concentrations of injected fluid occur in the LBFU above the injection area as a result of dispersive effects.
SWVP-397 at 16 and 39-40 (Figures 9.1 and 9.2). Mr. Nicholls testified that the figures
were based on a model that simulated injection over the entire screened interval,
including just below the exclusion zone. Mr. Nicholls acknowledged that FCI had not
done model runs to show that vertical migration of solution would not occur under other
operating and bedrock conditions.
226. Mr. Nicholls helped draft FCI’s applications for the Temporary APP and for
the UIC permit. FCI’s UIC permit application proposed the aquifer exemption to
coincide with the AOR. See SWVP-645 at 616. The aquifer exemption’s lower limit was
the top of the sulfide zone and its upper limit was approximately 200 feet into the LBFU
in the area to the west side of the aquifer exemption/AOR. See SWVP-645 at 618. Mr.
Nicholls testified that FCI has no plans to discharge contaminants 200 feet into the
LBFU because it would violate the Temporary APP. Mr. Nicholls acknowledged that
although ADEQ has only required monitoring downgradient, USEPA has required
monitoring directly above the mine block.
227. Mr. Johnson and Mr. Nicholls both testified that if solutions migrated into the
LBFU, such solutions would also migrate horizontally and would eventually be detected by
MW-01, the POC wells, or the new wells required by USEPA in the AOR under the UIC
permit. Mr. Johnson and Mr. Nicholls noted that FCI was required to submit data from all
wells to both USEPA and ADEQ and that if ADEQ became concerned about possible loss
of hydraulic control, it could require additional wells.
228. Mr. Brown acknowledged that the Temporary APP required FCI to inject
and contain solution in the oxide unit. Mr. Brown testified that during post-closure,
some atoms of leachate in the PTF will migrate into the LBFU. Mr. Brown does not
believe that during BHP’s pilot project, solution migrated into the LBFU, despite Mr.
Kline’s testimony and draft report, or that as the PTF is currently designed, any
appreciable amount of solution will migrate into the LBFU.
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3.7.3.2 Whether the Temporary APP’s requirements for hydraulic control will prevent migration of solution (appeal issues 37 and 44)
229. Mr. Brown testified that Mr. Johnson told him that FCI would operate the
PTF at the ALs of 240 gpm for injection and 300 gpm for recovery. See ADEQ-7 at 41
Table 4.1-8. Mr. Brown testified that he modeled operations at the PTF well field under
those conditions. See FC-25 at 141 (Plate 40-1), 142 (Plate 40-2).
230. Mr. Brown submitted an illustration of his modeling of recovery wells that
intersected one of the faults to show that solution moves a small bit outward, but that
the solution is pulled back within 30 to 50 feet of the boundary of the PTF well field. Mr.
Brown opined that based on actual measurements and real world data, the proposed
system will contain the leachate solution but that if necessary, FCI would amend its
operational plan as specific data is acquired. Mr. Brown testified that his Plate 40-3
showed that in the worst case scenario of two injection wells drilled through a high
permeability fault that was not intersected by any recovery wells, the solution would
migrate laterally 500 feet to the northeast and southwest, but that in time, the solution
would get pulled back within 30 to 50 feet of the boundary of the PTF well field, then be
recovered into the upper levels of the oxide zone. See FC-25 at 145 (Plate 40-3). Mr.
Brown opined that the wisdom of the Temporary APP was that if necessary, FCI can
convert observation wells to recovery wells to increase pumping to reestablish hydraulic
control.
231. Mr. Brown testified that even in the worst case scenario of an injection
well on a fault, solution did not migrate into the LBFU. See FC-25 at 146 (Plate 40-6).
Mr. Brown’s Plate 6-2 showed that the only way that solution migrated into the LBFU in
his model was if FCI injected solution at a greater pressure than the Temporary APP
allowed. See FC-25 at 134 (Plate 6-2). Mr. Brown testified that because his models
showed that it was impossible for vertical migration of solution to occur if FCI complied
with the Temporary APP’s requirements concerning injection and pumping, ADEQ did
not need to monitor the LBFU.
232. Dr. Wilson testified that in fact, BHP’s model predicted vertical migration
due to the cone of impression pushing solution into the LBFU. See SWVP-792 at 45.
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Dr. Wilson testified that Mr. Brown’s Plate 6-2 noted a possible escape pathway of
injected solution through the exclusion zone into the LBFU and that under Mr. Brown’s
worst case scenario, migration could occur in a matter of hours. See FC-25 at 134
(path 2 on Plate 6-2). Dr. Wilson opined that monitoring of the exclusion zone and
LBFU was needed to determine whether injected solution migrated into the LBFU in
violation of the Temporary APP.
233. Dr. Wilson added K values that showed PTF head and flow for normal
operation to illustrate that the arrows in Mr. Brown’s Plate 40-3 were based on the flow
model, not the fate and transport model. See SWVP-832 at 38 (based on FC-25 at
145). Dr. Wilson explained that he wanted to show how assumptions had become
embedded in ADEQ’s process of review and Mr. Brown’s analysis, noting that although
the arrows in Mr. Brown’s Plate 40-3 got close to the LBFU, the arrows did not reach the
LBFU but always reversed direction into the oxide unit, away from the LBFU. Dr.
Wilson testified that Mr. Brown’s simulated results were based on the assumption that
the top level of the oxide unit was equivalent porous media having a uniform K value of
0.57, even though no data actually supported the assumption. Dr. Wilson did not object
to assumptions, but he objected to ADEQ not requiring verification of assumptions in the
PTF.
234. Dr. Wilson testified that Mr. Brown’s Plate 40-3 also did not consider
dispersion or short circuits. Dr. Wilson testified that if the size of the short circuit taken
by the injectate was indeterminate with a high K value in a hydraulic conductivity zone,
the short circuit would not enhance recovery. Dr. Wilson testified that recovery
depended on where the short circuit was located and whether the fracture was shorter
than the fault. Dr. Wilson opined that solution would not necessarily be recaptured
under the worst case scenario because Mr. Brown only considered faults, but the larger
faults were not the most likely escape routes.
235. Mr. Brown disagreed that the Temporary APP’s requirements for well field
design did not account for groundwater mounding in and around the PTF well field
during and after injection operations. Mr. Brown noted that groundwater mounding was
allegedly observed in October 1995, before BHP’s pilot project. Figure 14C-47 of the
application showed the mounding on the southwest edge of FCI’s property in the UBFU,
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LBFU, and oxide zone. See FC-25 at 147. In Mr. Brown’s opinion, the mound was
illusory and caused by a number of irrigation wells because October is the end of the
irrigation season and no other data showed mounding. Mr. Brown explained that
localized head mounding is an inevitable result of the ISCR process, but groundwater
elevations will rise at the injection wells and lower at the recovery wells, with no net
mounding effect.
236. Mr. Brown’s supplemental report included Plate 41-6 to show flow
interaction between the four injection wells and the nine recovery wells during BHP’s
pilot project. See FC-74 at 20 (Plate 41-6). Mr. Brown’s supplemental report
summarized BHP’s data and explained the data as follows:
There are large head drawdowns and buildups in the water levels in the wells located along the east-west centerline, indicating that this area has relatively low hydraulic conductivity and/or that wells in this area are subject to plugging and concomitant well inefficiency. Conversely, there are relatively small drawdowns and buildups in the wells north and south of the centerline, suggestive of east-west zones of higher hydraulic conductivity and/or higher well efficiency in these areas. These findings are generally consistent with the findings of the model calibration performed by BHP on the test data.
FC-73 at 7 (footnote omitted).
237. Dr. Wilson explained that well efficiency is the ratio of the theoretical
drawdown compared to the actual drawdown. The well inefficiencies in BHP’s pilot
project ranged from 70% to 30%, but averaged at 57%. Dr. Wilson opined that well
inefficiency did not explain the differences in the cones of impression in BHP’s well field.
Dr. Wilson noted that although Mr. Brown provided two options to explain differences in
drawdowns, available information did not show that the differences in the cones of
impression for the two wells were due to the difference in well inefficiency. Dr. Wilson
opined that the difference in the cones of impression therefore must be due to
differences in hydraulic conductivity. See SWVP-792 at 48.
238. Dr. Wilson also analyzed Mr. Brown’s Plate 41-6. See SWVP-832 at 31
(based on FC-74 at 20). Dr. Wilson testified that injection of solutions created cones of
impression or mounding that pushed the solution up and out into the aquifer. Dr. Wilson
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noted that the elevation differences between different injection and recovery wells
varied widely and that small, focused cones of depression could be seen around the
recovery wells. Dr. Wilson testified that the westernmost injection well A, which was
BHP-8, was shown to have a flow of 18 gpm. The elevation of injection well BHP-8
during BHP pilot project was 1420 feet above sea level. The elevation furthest out from
BHP-8 was 1320 feet, meaning that the mound was approximately 100 feet high. In
contrast, injection well B, which was BHP-9, to the southeast of BHP-8, was shown to
have a flow of 21 gpm and an elevation of 1350 feet above sea level, a mound of less
than 30 feet above the furthest elevation.
239. Dr. Wilson opined that the differences in the sizes of the recorded mounds
of impression indicated heterogeneity and that Mr. Brown’s Plate 41-6 provided
additional support for the short circuit that BHP’s draft report had noted between
injection well BHP-9 and recovery well BHP-5, which was located south of injection well
BHP-8 and west of injection well BHP-9. See SWVP-792 at 43 (map of BHP well field
at SWVP-792 at 14). Dr. Wilson testified that the small cone of impression from
injection well BHP-9 could have been due to most of the flow going to OWB-4, the
observation well on the southwest side of BHP’s well field, west of BHP-5. Dr. Wilson
opined that the PTF would be built on a smaller scale and that real world data indicated
that the injected solution could migrate into the LBFU or beyond the well field.
240. Mr. Brown testified that he hand-checked and verified the results of the 25
pumping tests that formed the basis of the hydraulic conductivity representations and
hydrogeologic conditions in FCI’s application. He summarized his findings in a Theim
“Flowdim” analysis at Plate 79-1, reporting that “there is a good to excellent
correspondence between the Permit Application analyses and the hand-analyzed
parameters.” FC-25 at 80 and 157 (Plate 79-1).
241. Dr. Wilson analyzed Mr. Brown’s Plate 79-1 that purported to verify Golder
Associates’ hydraulic conductivity analysis against BHP’s aquifer pumping test results.
See SWVP-832 at 30.31 Dr. Wilson testified that a K value of 0.57 indicated not just
31 Dr. Wilson testified that Mr. Brown had the X and Y axes reversed and that he corrected the error. The alleged error does not affect the plotting on the chart and is not the basis of Dr. Wilson’s criticism of Mr. Brown’s conclusion.
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equivalent porous media, but homogeneity in which every cell in the model layer was
assumed to be identical. Dr. Wilson testified that because data came from aquifer
zones other than the oxide zone, he circled the data from the oxide zone on his chart.
Three K values of between 4 and 10 feet/day in the oxide zone on the right side of the
chart showed high permeability. The seven K values of between less than .01 foot/day
and less than 1 foot/day in the oxide zone showed much less permeability. Dr. Wilson
testified that because solution will flow along preferential pathways with higher K values,
it was critical to get data and not to just assume that the K value for the oxide zone was
0.57.
242. Dr. Wilson testified that FCI and ADEQ assumed that pumping more fluid
than was injected and maintaining an inward gradient to create a cone of depression
would ensure that solution did not migrate. However, the main component of an ISL
mine is injection, not recovery. Dr. Wilson explained that putting pressure on an aquifer
to move water up and out should raise concerns about short circuits. Although BADCT
defined hydraulic control in part as pumping more solution than was injected to maintain
an inward gradient, or cone of depression, BADCT also warned that in ISL mining,
“[p]otential for short circuiting of anticipated solution migration pathways due to fractures
and solution/rock chemical reactions over time is a potential concern that should be
assessed for in-situ mining in most instances.” SWVP-832 at 11 (quoting SWVP-156 at
159 § 3.4.4.2).
3.7.3.3 Electric conductivity and pH
243. Section 2.7.4.4 of the Temporary APP requires FCI to submit the
following monitoring reports:
4. A graphical representation of electric conductivity readings from the injection and observations wells. . . . .
7. Graphical time versus concentration plots of groundwater elevations, field pH, sulfate and total dissolved solids [(“TDSs”)] since the inception of monitoring at each POC well, and any parameter which exceeded an applicable AL or AQL in the past three sampling events at each POC well.
. . . .
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14. Copies of Reports submitted to the EPA as required by
the UIC permit, including groundwater monitoring results from wells not covered by this permit.
ADEQ-7 at 21-22. The Temporary APP did not require FCI to take any electric
conductivity readings or to take readings from any unit of the aquifer.
244. Dr. Wilson noted that in a July 24, 2012 email to Mr. Nicholls, Ms. Widlowski
included in a draft version of the Temporary APP requirements that FCI monitor pH that
was less than 6.0 SU and electric conductivity that was above the background level. See
SWVP-792 at 55 (referring to SWVP-377 at 3). However, Dr. Wilson noted that because
§ 2.7.4.4(4) in the final draft of the Temporary APP did not require FCI to measure electric
conductivity or pH at any unit of the aquifer, he did not know whether FCI would submit
reports that would allow ADEQ to identify escaped solution in the exclusion zone or LBFU.
Although § 2.6.3.4 of the Temporary APP provided contingencies for the unexpected loss
of fluid in the injection/recovery wells at the PTF, Dr. Wilson noted that FCI might not
know whether it has lost fluid because no permit condition required it to monitor vertical or
horizontal escapes of fluid during PTF operations.
245. In a July 12, 2012 email, Ms. Widlowski suggested that chemical
concentrations in observation wells be monitored through electric conductivity to measure
TDSs or pH. See SWVP-371 at 6. At the hearing, Ms. Widlowski testified that ADEQ
expected to see possibly elevated pH levels at observation wells even if FCI maintained
hydraulic control because the Temporary APP gave FCI operational flexibility by allowing
it to change the observation wells to recovery wells if necessary. Ms. Widlowski testified
that ADEQ did not require electric conductivity or pH to be measured at the observation
wells because ADEQ thought that solution might reach the wells.
246. Mr. Nicholls testified that at least five protections in the Temporary APP
would prevent vertical and horizontal migration of fluid: (1) USEPA required that all wells
within the well field be Class III wells; (2) The wells would have electric conductivity
sensors; (3) All wells in the well field would have a sealed cement casing through the
LBFU and 40 feet into the oxide unit; (4) Due to mechanical integrity testing, the wells
would not leak; and (5) MW-01 would detect any migration of fluid. Mr. Nicholls testified
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that unlike Steamtech’s electric conductivity studies, FCI’s sensors would be outside the
well casing, allowing computers to better monitor solution movement.
3.7.3.3.1 Electric conductivity (appeal issue 43)
247. Ms. Widlowski noted that the well plans in FCI’s application showed
conductivity probe wires, strapped to casing with stainless steel straps every 20 feet from
the top of the well to the bottom of the UBFU, not more than 20 feet above the MFGU.
See ADEQ-1 at 238. Mr. Bryan acknowledged that the well design in FCI’s application did
not contain any electric conductivity sensors in the LBFU or exclusion zone.
248. Mr. Johnson testified that the wells inside the dotted line showing the 500-
foot buffer zone or USEPA AOR must meet class III standards, including having electric
conductivity sensors to ensure that the wells were properly sealed through the LBFU and
exclusion zones. See FC-2. Mr. Johnson testified that the sensors would be wrapped
around the outside of the well casing for accuracy and with a minimum effect on
efficiency. The sensors would be hooked to Supervisory Control and Data Acquisition
(“SCADA”) software that would provide real time measurements that would be monitored
24 hours a day, seven days a week. If there was an escape of fluid, FCI would be alerted.
Mr. Johnson testified that Ms. Widlowski and Mr. Bryan were familiar with SCADA and
were confident that FCI would demonstrate hydraulic control and prevent migration of fluid
going forward. Mr. Johnson acknowledged that the well plan that FCI submitted to ADEQ
and to USEPA did not require electric conductivity sensors to be installed in the exclusion
zone or the LBFU. See ADEQ-1 at 238; SWVP-645 at 524.
249. Mr. Nicholls testified that the well designs for the PTF were different from
the designs for the commercial mine and that more than one type of well would be
constructed in the PTF. Mr. Nicholls testified that the observation wells would not have
steel casing like the injection and recovery wells. Mr. Nicholls acknowledged that no
devices in the exclusion zone or LBFU would monitor fluid migration. Mr. Nicholls opined
that if FCI screened a well in the lowest 4 or 5 feet of the LBFU, where there was already
pressure, it might create a potential preferential pathway.
250. Mr. Nicholls testified that extraction by hydrosleeve of several liters of fluid
for sampling within or close to the PTF well field could draw fluid into the well. Mr.
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Nicholls testified that FCI would maintain an inward gradient, pump more fluid than it
injected, and monitor operations with the sophisticated SCADA software. Mr. Nicholls
testified that sampling would introduce uncertainty. When asked if the system was that
fragile, Mr. Nicholls responded that sampling could affect hydraulic control if the system
were operating at the ALs. Mr. Nicholls testified that a stronger cone of depression
would reduce the effect of withdrawal of fluid for sampling.
251. Mr. Brown testified that sampling using a hydrosleeve was not a good idea
because FCI could only sample a couple of feet in a 1,000-foot well. Mr. Brown testified
that FCI would need to take samples to prepare the various graphical representations
required by § 2.7.4.4 of the Temporary APP, even though the permit did not specify
when, from what level, or how such samples should be collected. See ADEQ-7 at 21.
Mr. Brown testified that the standard methods of collection are using a hydrosleeve or if
a hydrosleeve is not used, low-flow pumping.
252. Mr. Bryan acknowledged that FCI could take samples by micropurging or
hydrosleeve without risk of drawing solution into the LBFU.
3.7.3.3.2 pH (appeal issues 40, 43, and 64)
253. Appellants claimed that the Temporary APP unreasonably failed to include
pH as a required indicator parameter for hydraulic control.
254. Mr. Johnson testified that the injection and recovery wells would not gather
pH data due to the difficulty of keeping equipment that monitors pH calibrated for
consistency and reliability.
255. Mr. Brown disagreed that the Temporary APP unreasonably failed to
include pH as a required indicator parameter for hydraulic control. Mr. Brown explained
that pH is a poor parameter because acid is consumed during mining and pH is a
lagging indicator. Mr. Brown explained that TDSs, electric conductivity, and sulfate
were better indicators for contamination because taking accurate pH readings requires
frequent calibration of equipment.
256. Dr. McNulty testified that pH was required as an indicator parameter in the
Temporary APP, which was helpful. Dr. McNulty added that when it comes to hydraulic
control, pH is not the best indicator because conductivity probes are sensitive and need to
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be calibrated regularly to measure pH, which would result in constant maintenance with
little value added. Dr. McNulty preferred to measure escaped sulfuric acid through
conductivity, which measures the free hydrogen of sulfuric acid (H2S04), rather than pH.
3.7.3.4 Monitoring well MW-01 (appeal issues 29 and 40)
257. Section 2.5.8 of the Temporary APP required FCI to construct additional
monitoring well MW-01 downgradient from the PTF well field, in addition to the
observation wells shown on FCI’s application, in relevant part as follows:
Monitoring well MW-01 shall be installed and approved by ADEQ in accordance with the Compliance Schedule, Section 3.0. Monitoring well MW-01 shall be located in the down gradient groundwater direction at or near the PTF well field boundary. The placement of MW-01 shall be sufficiently located to measure changes in chemical groundwater concentration emanating from the injection zones within the effective time frames of the Temporary APP. MW-01 shall be a nested well screened separately across each proposed injection zone targeted for in-situ leaching, and potentially into the LBFU. MW-01 shall be analyzed one month prior to the pilot test start-up and one month after the rinsing phase for parameters listed in Table 4.1-5. MW-01 shall be monitored monthly for the duration of the pilot test for pH, sulfate and total dissolved solids (TDS). The groundwater data collected for this well shall be summarized and submitted as part of the Quarterly Reporting Requirement listed in Section 2.7.4.4.
ADEQ-7 at 9. Table 4.1-5 set parameters for various substances, including pH, arsenic,
and nitrate. See ADEQ-7 at 33. Section 2.5.8 required FCI to submit a permit
amendment application to justify the location of MW-01. See ADEQ-7 at 9, 27 (§ 3.0,
Submittals/Activities Requiring Permit Amendment Application).
258. Ms. Widlowski testified that FCI was required to construct monitoring well
MW-01 and new POC well M54-O in locations that would intersect the three known faults.
Ms. Widlowski noted that Haley & Aldrich’s figure submitted in response to ADEQ’s
request for information showed the location of the Rattlesnake, Thrasher, and Sidewinder
faults and the proposed location of M54-O intersecting the Rattlesnake and Thrasher
faults downgradient. See ADEQ-5 at 10, 12. Ms. Widlowski testified that MW-01 would
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intersect all three faults and that one well would be screened in the oxide zone and the
other would be screened in the LBFU.
259. Dr. Wilson noted that based on historical records of flow direction and
pumping by production wells, groundwater could flow to the west and north at the PTF
site. See SWVP-792 at 53.
260. Mr. Nicholls acknowledged that Brown and Caldwell’s map of water
elevations in 2008 showed groundwater flows to the north and northwest in the UBFU and
LBFU. See FC-25 at 126. Mr. Nicholls acknowledged that when the flow in the bedrock
oxide unit reached a point north of the PTF well field, the flow turned almost due north.
Mr. Nicholls explained that the northerly flow shown on Brown and Caldwell’s map of
water elevations in October 1995 was caused by irrigation well WW-3, which had a
significant capacity of 800-900 gpm. See FC-25 at 147. Mr. Nicholls explained that
irrigation well WW-3 would not be pumping during PTF operations because it was in the
AOR and USEPA regulations required it to be abandoned.
261. Mr. Nicholls acknowledged that in October 1995, Brown and Caldwell
mapped flow due west in the oxide zone south of the PTF well field. See FC-25 at 147.
Mr. Nicholls acknowledged that MW-01 might not identify escaped contaminants if
groundwater flow was perpendicular to the contours on Brown and Caldwell’s map. Mr.
Nicholls opined that because groundwater would not flow north or west without also
flowing northwest, he was certain that escaped contaminants would eventually be
detected by MW-01.
262. Ms. Widlowski acknowledged that she requested additional monitoring wells
in a draft request for information based on her concerns about possible rebound issues
during restoration. See SWVP-620 at 4. Ms. Widlowski testified that § 2.9.2 of the
Temporary APP resolved her concern by requiring FCI to submit confirmation
groundwater samples after rinsing at intervals to detect rebound. See ADEQ-7 at 24 §
2.9.2. Ms. Widlowski testified that she also requested additional monitoring wells to
address hydraulic control concerns due to potential groundwater flow direction and
gradient fluctuations caused by on-site and off-site pumping. See SWVP-620 at 5. Ms.
Widlowski explained that when FCI informed ADEQ that there would not be any pumping
directly to the west during PTF operations, it resolved her concern. Ms. Widlowski noted
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that Dr. Wilson’s hypothetical case of strong groundwater flows to the north and west
assumed seven wells to the west pumping 1,000 gpm, but that no evidence indicated that
such pumping would occur during the time that the PTF will be operating.
263. Mr. Johnson testified that MW-01 would not be located in the PTF well field
but that it would be located half-way between the well field and the POC wells to monitor
groundwater. Mr. Johnson testified that MW-01 would be screened in the interface
between the LBFU and the oxide unit.
264. Dr. Wilson testified that if MW-01 was located 250 feet from the PTF well
field, it would be two years before MW-01 identified an escape of any contaminant. Dr.
Wilson noted that if an escape occurred during the second year of operation, MW-01
might never identify the escape.
265. Mr. Brown testified that a monitoring well in the PTF well field would not
detect vertical migration because it would have to be located in exactly the right spot.
Mr. Brown testified that MW-01 is a better way to detect migration because it is just off
to the side, but close enough to provide a rapid response and far enough downgradient
to sample a substantial portion of groundwater flow. Mr. Brown disagreed that the
Temporary APP did not adequately protect drinking water supplies because MW-01 was
the only monitoring well that contaminants could be expected to reach during the 2-year
term of the Temporary APP. Mr. Brown noted that although ADEQ could not enforce
AWQS or AQLs at MW-01, Temporary APP § 2.5.8 required MW-01 to be located so
that it measured changes in chemical groundwater concentration emanating from the
injection zones within the effective time frame of the PTF.
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3.7.3.5 Acid balance (appeal issues 43 and 80)
266. Dr. Wilson noted that although the Temporary APP required that FCI
maintain a water balance by recovering more fluid than it injected, the APP did not require
FCI to account for the acid that it injected into the aquifer during PTF operations.
Although BHP records indicated that it had recovered most of the solution that it had
injected, Dr. Wilson opined that some the acid may have been lost upward and laterally
and that some acid was still in the ground in the mine block, based on the pH data at
BHP’s observation wells.
267. Mr. Brown noted that BHP maintained records to prepare a “mass
balance” for sulfate. See FC-74 at 24. The amount of recovered sulfate kept increasing
for 100 weeks after the start of injection. Mr. Brown testified that BHP recovered 92.7%
of the sulfate that resulted from the injected sulfuric acid solution and that after 99
weeks, BHP had recovered nearly 1.2 million pounds of sulfate. Mr. Brown opined that
there is currently no sulfate in the groundwater from BHP’s pilot project and that BHP
had contained injected solutions.
268. Dr. Wilson noted that Ms. Widlowski’s July 24, 2012 email included a Mass
Balance of Sulfuric Acid at Injection and Recovery Wells in the draft Temporary APP,
although the draft did not include an AL for sulfuric acid or sulfate. See SWVP-792 at 55
(referring to SWVP-377 at 3). An acid or sulfate balance was not required by the
Temporary APP.
269. Ms. Widlowski acknowledged that a draft of the Temporary APP required
FCI to provide “[m]ass balance calculations for sulfuric acid during the reporting period”
in its quarterly reports. See SWVP-380 at 19. Ms. Widlowski explained that she did not
know whether a mass balance for sulfuric acid could be calculated on a weekly or
quarterly basis. Ms. Widlowski explained that acid balance was a unique term and that
after discussions with FCI, the requirement of a mass balance in quarterly reports was
taken out of the Temporary APP because the calculation could better be made at the
end of the PTF.
270. Ms. Widlowski testified that a mass balance for sulfate would be difficult to
provide because the recovered solution would be different than the injected solution after
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the solution was partly or fully consumed during ISL mining. Ms. Widlowski
acknowledged that ADEQ’s responses to comments provided that acid consumption
would be assessed at the end of the PTF pilot test to calculate a mass balance
consumption and recovery of acid, but that the Temporary APP did not require FCI to
provide a mass balance calculation for sulfuric acid or sulfate at the end of the PTF.
See ADEQ-10 at 206-207. Ms. Widlowski testified that FCI had assured her that it would
provide such calculation.
271. Dr. Wilson acknowledged that BHP’s draft report contained the following
caution about the costs of injecting solution:
One cautionary note was provided by leaching experiments with Lower Basin Fill sediments, however. The calcareous sediments overlying oxide zone mineralization were found to be calcareous, with acid consumption on the order of 150 lb. acid per ton. Flow of raffinate into the Lower Basin Fill would dramatically increase acid costs.
SWVP-649 at 163.
272. Mr. Johnson testified that because sulfuric acid is a valuable resource in the
ISL mining process and allowing acid to migrate would be a poor management practice,
he is confident that FCI will be able to keep the solution at a greater depth, below the
LBFU. Mr. Johnson testified that FCI will collect data to perform an acid balance during
PTF operations to calculate the amount of acid needed to produce a pound of copper
because FCI will need the data to decide whether to go forward with the commercial mine.
Mr. Johnson acknowledged that the Temporary APP does not require FCI to provide this
data to ADEQ but testified that if FCI was ordered to do so, it could provide acid balance
data to ADEQ.
273. Mr. Nicholls testified that the lixiviant solution was only .5% sulfuric acid and
that the PLS would be pumped out after dissolving minerals. Mr. Nicholls testified that
FCI will keep track of all acid that it purchases for the PTF. Mr. Nicholls testified that acid
would not be lost to the aquifer, but would be consumed because sulfate, not acid, would
remain and precipitate out as gypsum. Mr. Nicholls testified that the gypsum dissolves
and will be recovered during rinsing.
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274. Mr. Bryan testified that there was no reason for FCI to operate the PTF in
such a way as not to recover all injected solutions. From an economic perspective, as
well as to demonstrate hydraulic control, Mr. Bryan is confident that FCI will recover all
injected solutions.
275. Mr. Kline testified that an acid balance was not useful because acid is
consumed in ISL mining. Mr. Kline testified that by the time he left BHP’s pilot project, it
had recovered 88% of sulfate based on a mass balance calculation that it had
performed. Mr. Kline explained that the basis of the calculation was that trucks were
weighed at San Manuel after they were loaded with raffinate and trucks were weighed
after BHP’s final inventory had been pumped from storage tanks into trucks. Mr. Kline
disagreed with Dr. Wilson’s conclusion that sulfate had been lost to the aquifer because
it is impossible to calculate how much gypsum remained in the bedrock.
276. Mr. Brown testified that the recovery wells would extract PLS and that FCI
could not determine whether 100% of the lixiviant was extracted because the lixiviant
dissolves copper and then a certain amount diffuses into cracks in the bedrock and
stays there a long time, perhaps tens or thousands of years. Mr. Brown testified that
BHP extracted 92% of the sulfate left from the pilot project and that although recovery is
exponential, it never gets to 100%. Because the recovery of sulfate occurs long after
the last injection, there is no benefit to a sulfate balance except in the very long term.
277. After hearing FCI’s witnesses’ testimony, Dr. Wilson agreed that FCI
should not be required to monitor sulfuric acid (H2SO4), but opined that FCI should
monitor sulfate (SO4). Dr. Wilson opined that although FCI should not be required to
monitor sulfate on a routine basis, if electric conductivity monitoring indicated an escape
of solution, FCI should be required to perform a sulfate balance. Although such a
monitoring requirement would not require FCI to account for 100% of injected solution,
the monitoring would show a change and indicate what was happening and when it was
happening.
3.7.3.6 The 40-foot exclusion zone (appeal issue 42)
278. The Temporary APP requires that “[a]ll injection wells and recovery wells
shall be designed and installed to prevent injection into the top 40 feet (the exclusion
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zone) of the oxide zone. The injection of solutions shall be limited to the Oxide ore body
only.” ADEQ-7 at 4 § 2.2.4.
279. Dr. Wilson testified that he did not necessarily believe that the 40-foot
exclusion zone was inappropriate. He explained that he did not know the basis of the
exclusion zone, but that it should be based on science.
280. Mr. Brown testified that his modeling showed that 40 feet is not too deep to
exclude resources but is deep enough to prevent any migration of fluid into the LBFU.
Mr. Brown’s report stated in relevant part as follows:
The Oxide exclusion zone is not on its own protective of drinking water supplies. The protection is the result of recovery of more water than was injected, and the maintenance of inward hydraulic gradient to the PTF facility. Therefore, no “proof” that the 40-foot exclusion zone at the PTF wells is protective of drinking water supplies can be provided, and the Permit appropriately does not require it.
FC-25 at 39. Mr. Brown testified that models and the results of BHP’s pilot project
confirmed that the 40-foot exclusion zone was adequate.
281. Ms. Widlowski testified that the 40-foot exclusion zone protected drinking
water supplies and that she was not worried about excursion of fluid into the exclusion
zone because FCI’s consultant indicated that the solution would be diluted and capable of
being extracted. Ms. Widlowski testified that POC well M54-LBF and monitoring well MW-
01 eventually would detect any excursion of fluid into the exclusion zone or LBFU.
282. Mr. Bryan testified that the 40-foot exclusion zone protected drinking water
because all of the wells, including the Westbay wells, would be cased with steel and
cement through the 40-foot exclusion zone and FCI could not inject above that level.
See ADEQ-1 at 236. Mr. Bryan testified that due to dispersion and dilution, ADEQ was
confident that any excursion of fluid into the 40-foot exclusion zone would not cause a
violation of AWQS at the POC wells.
283. In addition to requiring that wells be designed to prevent injection into the
top 40 feet of the oxide zone, the Temporary APP stated that “[t]he estimated injection
zone is between approximately 500 feet below ground surface (ft bgs) to 1,185 ft bgs.”
ADEQ-7 at 2 § 2.1.
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284. Mr. Bryan testified that the exclusion zone for the PTF was effectively 72
feet blow the top of the oxide unit. Mr. Johnson explained that the LBFU was 50 to 75
feet thick above the ore body and that because the top of the 40-foot bedrock exclusion
zone was 428 feet bgs, effectively FCI had agreed not to inject lixiviant 32 feet in
addition to the 40-foot exclusion zone. See FCI-58.
285. FCI’s permit application stated that the top of the oxide zone was 458 feet
bgs. See ADEQ-1 at 68. Mr. Nicholls explained that FCI subsequently did more drilling
in June or July of 2011, and determined that the top of the oxide unit was actually 428
feet bgs. Mr. Nicholls testified that FCI was not surprised but did not update the
information to ADEQ.
286. Dr. Wilson testified that he first heard about the purported 72-foot
exclusion zone during Mr. Bryan’s and Mr. Nicholls’ testimony and that FCI’s claim that
the Temporary APP effectively required a 72-foot exclusion zone was misleading. Dr.
Wilson testified that the design for well construction included in the FCI’s application
showed a 4-layer steel, PVC, and fiberglass casing surrounded by concrete to the
bottom of the 40-foot exclusion zone to prevent any fluid from escaping. See SWVP-
832 at 15 (based on ADEQ-1 at 236). Dr. Wilson noted that although the Temporary
APP stated that injection would occur below 500 feet bgs, the well construction plans in
FCI’s application showed that the casing below the bottom of the exclusion zone was
one layer of acid-resistant PVC without cement, surrounded by a sand and gravel filter.
See SWVP-832 at 16. In the center of the well below the exclusion zone was a PVC
screen that provided perforations or a break in the casing that would allow solution to
get out of or into the well. Dr. Wilson explained that any injection at 500 feet bgs at the
top of the screen would go up and through the more permeable sand and gravel screen
toward the bottom of the exclusion zone. See SWVP-832 at 17.
287. Dr. Wilson pointed out that FCI’s application did not state that it intended
to prevent injectate from reaching 72 feet below the top of the oxide unit, providing as
follows:
Once injection and recovery wells have been installed at the PTF and all pre-operational conditions of the APP and the UIC programs have been met, a dilute sulfuric solution (i.e., lixiviant) will be injected into the oxide zone. The portion of
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the oxide zone in which injection and recovery occurs is referred to as the IRZ. The proposed injection and recovery wells will be constructed to provide access to the full thickness of the bedrock oxide unit, with the exclusion of a 40-foot thick zone comprising the uppermost 40 feet of the bedrock oxide unit. . . .
ADEQ-1 at 570. Dr. Wilson asserted that FCI never contemplated a 72-foot exclusion
zone because the well design allows full access to the oxide unit, except for the 40-foot
exclusion zone.
3.8 The POC wells
3.8.1 The Pollution Management Area (“PMA”) and the POC wells in FCI’s application
288. FCI’s application for the Temporary APP for the PTF described the PMA
based upon permit conditions for BHP’s life-of-facility commercial mine:
All proposed PTF operations will be conducted within the PMA shown on Figure 8-1. The PMA is located entirely within the state mineral lease property shown on Figure 8-1. The PMA includes all of the State Land that was approved in the UIC permit (No. AZ396000001) issued in 1997 by the USEPA for the injection and recovery of ISCR solutions, and extends eastward to include all proposed surface facilities (e.g., the pipeline corridor, the beneficiation area, and the water impoundment) required to support ISCR operations in the PTF well field.
ADEQ-1 at 405, Attachment 10 at 5.
289. FCI’s application proposed six existing POC wells from BHP’s commercial
mine: M23-UBF, M22-O, M15-GU, and M14-GL, which were located in a cluster
west/northwest of the PTF well field, and P13-GL and O13-O, which were located close
to each other more to the north/northwest of the PTF well field. See ADEQ-1 at 601.
The boundaries of the proposed PMA on the application were the state trust land’s
boundaries on the north, east, and south, with the existing water impoundment pond at
the northeast corner. The downgradient boundary northwest of the PMA was a line
drawn at a 45° angle with the southern boundary of the state trust land, approximately
200 feet from the boundary of the PTF well field.
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290. ADEQ accepted the PMA boundary and the four existing POC wells to the
west/northwest, but required FCI to drill two new POC wells M54-LBF and M54-O closer
to the PTF well field to the north/northwest. See ADEQ-5 at 25, 33, and 77; ADEQ-7 at
5 § 2.4.
291. Ms. Widlowski noted that BADCT provided that “[n]egotiation between the
applicant and ADEQ is usually necessary because of subjective judgments inherent in
some BADCT analyses. This means that no single technology or group of technologies
can be mandated as appropriate for all discharge control systems.” BADCT Key
Concepts, SWVP-156 at 17. Ms. Widlowski testified that as a consequence, ADEQ’s
policy is to allow an applicant to choose the locations of the PMA and POCs and to
approve the locations if they comply with Arizona law. Ms. Widlowski explained that
although ADEQ may make suggestions, it cannot unilaterally draw a PMA or require an
applicant to place POCs in a specific location.
292. Ms. Widlowski testified that in her 13 years with the APP program, ADEQ
has always been liberal in setting PMAs and has allowed applicants to draft the PMA. Ms.
Widlowski testified that if ADEQ decides the PMA adequately protects the environment, it
approves the PMA and that if the PMA is drawn too narrowly, it could cause problems.
Ms. Widlowski explained that ADEQ does not have time or resources to go through every
application for an APP to decide the most restrictive PMA.
3.8.3 The area where pollutants are or will be placed
293. A.R.S. § 49-244(1) provides that “for a pollutant that is a hazardous
substance the [POC] is the limit of the [PMA]. The [PMA] is the limit projected in the
horizontal plane of the area on which pollutants are or will be placed.” (Emphasis
added.) FCI’s application defined hydraulic control as “[i]nward hydraulic gradient that
prevents in-situ solutions from migrating beyond [the] portion of oxide zone where
injection and recovery of in-situ solutions is occurring.” ADEQ-1 at 24 (emphasis
added).
294. Section 14.C.4 of FCI’s application provided additional information about
hydraulic control mechanisms in the application, in relevant part as follows:
Hydraulic control will be established by extracting a greater volume of fluid that is injected. The excess fluid will be
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principally composed of groundwater extracted from a series of hydraulic control wells located at the perimeter of the PTF well field. The hydraulic control wells will establish a measurable and continuously monitored cone of depression that ensures that groundwater is drawn inward toward the injection and recovery wells, physically preventing any fluids, either natural or injected, from flowing outward from the PTF well field. The cone of depression will be monitored by means of a series of observation wells located outside of, but paired with, the network of hydraulic control wells.
ADEQ-1 at 771 (emphasis added).
295. FCI’s UIC permit application envisioned a worst-case scenario involving loss
of hydraulic control for 48 hours due to inoperable recovery wells, resulting in injected
fluids not being recovered in any amount. Under the worst-case scenario, injected fluids
were not expected to migrate more than 67 feet horizontally from the injection wells:
Florence Copper proposes an AOR that is equivalent to the PTF well field area and a circumscribing width of 500 feet. This AOR is conservative with respect to protecting [Underground Sources of Drinking Water (“USDWs”)] because it provides a factor of safety of between 2.5 and 4 times the actual distance that injectate may migrate under worst-case conditions (30-day excursion) that significantly exceeds the maximum permissible excursion (48-hour excursion) described in the Operations Plan at the average injection rate proposed by Florence Copper for the PTF. The proposed AOR provides a safety factor of 7.5 times the actual distance (67 feet) that injectate might travel during the maximum permissible excursion of 48 hours.
SWVP-645 at 27 § A.4 (emphasis added).
296. FCI’s UIC permit application provided further that FCI anticipated that under
normal operational conditions, fluid would be contained within the outermost ring of
recovery wells in the PTF well field:
Under normal operating conditions of the proposed PTF well field, injection and recovery rates and the resultant pressure effects will be balanced such that the operator can be certain of recovering the injected solutions with sufficient additional formation water necessary to maintain an inward hydraulic gradient and hydraulic control. Balancing the injection and recovery rates has the effect of limiting the extent of the
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pressure influence generated by injection to the area within the outermost ring of recovery wells, and eliminating pressure effects outside of the active PTF well field area that have the potential to cause the migration of injected fluids or formation fluids into a USDW. Formation fluids present in the vicinity of the [FCI] property consist of groundwater of a quality generally suitable for agricultural and industrial uses, and in some cases drinking water.
SWVP-645 at 21 (emphasis added).
297. Dr. Wilson testified that the PMA under A.R.S. § 49-244(1) in an ISL mine
was the area where hydraulic control was expected to prevent the escape of acid. See
SWVP-792 at 62. Dr. Wilson explained that in the PMA, although contaminants were
permitted to vastly exceed the drinking water standards, an AL should be triggered at
the POC wells before the level of the contaminant reached AWQS or AQL under the
permit.
298. Mr. Nicholls testified that hydraulic control under FCI’s application and the
Temporary APP did not require injected solutions to stay within the area of injection and
recovery wells, but only to remain generally within the footprint of the PTF well field.
299. Dr. Wilson cited a power point presentation made by ADEQ’s former
senior hydrologist, Mr. Bolitho, regarding the relationship between the DIA and the PMA
at a facility that required an individual APP. See SWVP-792 at 62; SWVP-231 at 38.
Dr. Wilson testified that the DIA was the area that contaminants were expected to
reach, which in an ISL facility would depend on groundwater flows and would be the
pollutant plume. See SWVP-792 at 63. Dr. Wilson testified that the proper location for
a POC for an ISL facility would be outside the PMA, but inside the DIA. See SWVP-792
at 64.
300. Mr. Bolitho testified that he prepared his power point presentation for a
workshop for consultants to provide general guidance to applicants for individual APPs.
Although A.R.S. § 49-244 does not mention the DIA, Mr. Bolitho acknowledged that the
DIA should mirror the PMA for a well field.
301. Mr. Smit testified that Dr. Wilson had a basic misunderstanding of Arizona
environmental laws, especially the PMA and the proper location of POCs. Mr. Smit
testified that the purpose of the statutes and regulations is to protect downgradient
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landowners and that if such landowners are protected, the statutes and regulations are
complied with. Mr. Smit testified that Mr. Bolitho’s power point presentation for individual
APPs concerned a simplified example of an impoundment pond, not an ISL mine. Mr.
Smit testified that there were differences between an ISL mine and an impoundment pond
and that under A.R.S. § 49-244, the DIA was not relevant to the location of POCs for an
ISL mine.
302. Mr. Brown described the PMA for the PTF in his report, in relevant part, as
follows:
The area where the water quality could be affected by the operation of the leaching facility extends a few well spacings beyond the physical location of the injection and recovery wells, and is approximated by the outline of the PTF Wellfield boundary shown on Plate 7-1. This boundary therefore reasonably depicts the edge of the [PMA] for the PTF. However, the PTF is required to be operated with a net inward head gradient, so the edge of the [PMA] is not downgradient of the PTF location, and is therefore inappropriate as a location for the POC under A.R.S. § 49-244(1). Prior to running the PTF it is not known where the nearest point that is downgradient of the PTF is located, so it is reasonable to place the POC wells towards the allowed limit of distance away from the [PMA], downgradient of the PTF in the directions of regional groundwater flow, to maximize the allowable likelihood that the POC wells will be downgradient during operation.
FC-25 at 10-11 (footnotes omitted; emphasis added). Mr. Brown testified that the PTF
would be constructed on a grid with 70 feet between wells. See FC-25 at 135.
303. Mr. Brown also set forth A.R.S. § 49-244’s requirements for the location of
POC wells in his report, including the requirement in A.R.S. § 49-244(1) that the POC
wells be “[l]ocated at the limit of the [PMA], which is the limited projected in the
horizontal plane of the area on which pollutants are or will be placed.” FC-25 at 9
(footnote 12 omitted). Mr. Brown’s footnote 12 to this requirement stated as follows:
In the case of an ISCR injection wellfield, the concept of exactly where the pollutants are “placed” is more difficult than in the case of fixed facilities. I take it here to mean the extent within the groundwater system around the ISCR where injected water reaches, which is slightly beyond the
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limit of the outer recovery wells for a system where the extracted volume exceeds the injected volume (required for the PTF).
FC-25 at 9 n. 12 (emphasis added). Mr. Brown testified that he reviewed A.R.S. § 49-
244 to see how Arizona law defined the PMA, which is central to the issuance of the
APP. Mr. Brown testified that initially, he was satisfied that the PTF well field boundary
satisfied the legal requirements for the PMA, but that he later discovered considerations
that defined the PMA other than where injectate might reach.
304. Mr. Brown explained that when he was writing the report, he based it on
the plain meaning of the words “the area on which pollutants are or will be placed” in
A.R.S. § 49-244(1), not the concept of a barrier or containment system.32 Mr. Brown
acknowledged that he did not amend his report in writing or during FCI’s direct
examination.
305. Mr. Brown testified that contaminants did not necessarily stop at the
recovery wells but that his particle analysis showed that if contaminants left the well
field, they would be drawn back in. See FC-74 at 4. Mr. Brown testified that the
hydraulic control system under the Temporary APP would not keep leachate from
escaping and opined that a percentage of the solution would get past the recovery
wells, but would be drawn back into the well field by the cone of depression.
306. ADEQ posted on its website an Individual APP Hydrology Substantive
Review Checklist (“Substantive Review Checklist”) “as a guideline for ADEQ staff in
performing technical substantive reviews and to the applicant on what information
ADEQ will need to review [APP] applications.” SWVP-398 at 1. The Substantive
Review Checklist noted that an applicant was required to provide “the proposed facility
discharge activities indicating the location of the discharge and a map outlining the
[PMA] described in A.R.S. §49-244(1).” SWVP-398 at 2. The Substantive Review
Checklist also provided in relevant part:
Feedback to the applicant regarding applications omissions or deficiencies are communicated under the licensing
32 A.R.S. § 49-244(1) also provides that “[t]he [PMA] includes horizontal space taken up by any liner, dike or other barrier designed to contain pollutants in the facility.” As discussed below at Finding of Fact Nos. 343 et seq., at the hearing, FCI’s witnesses testified at the hearing that the PMA was justified by a 1,000 or 1,600-foot cone of depression that acted as a barrier under the Temporary APP.
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timeframes rules, based upon documentation transmitted to the project manager upon completion of hydrology reviews. The steps outlined below assume that adequate information exists to provide scientifically defensible decisions regarding the requirements of the draft APP.
SWVP-398 at 5 (emphasis added).
307. Ms. Widlowski acknowledged that there was no scientific basis for the 45º
angle on the southwest side of the PMA, but testified that the PMA was not arbitrary
because ADEQ was liberal in defining PMAs. Ms. Widlowski acknowledged that the DIA
should not be smaller than the PMA and that Mr. Belitho’s presentation generally showed
the relationship between the two concepts. See SWVP-231 at 37, 38.
308. Mr. Johnson testified that because the Temporary APP allowed the
observation wells to be used as recovery wells if necessary, hydraulic control meant that
no solution should migrate beyond the observation wells in the PTF well field.
309. Dr. Wilson testified that regardless of whether Mr. Bolitho’s presentation
constituted a substantive policy, it provided good guidance and practice. Under A.R.S.
§ 49-244(1), pollutants would be placed in the IRZ beneath the footprint of the PTF well
field. See SWVP-832 at 19 (based on SRK’s report in FCI’s 2013 revised UIC permit
application, SWVP-645 at 60). Dr. Wilson testified that the cross-hatched area in SRK’s
drawing in FCI’s revised UIC permit application showed exactly the area where
pollutants would be placed as defined by A.R.S. § 49-244(1). See SWVP-645 at 60.
Dr. Wilson opined that this was the area where BADCT provisions for maintaining
hydraulic control under the Temporary APP applied.
3.8.3 The PMA as an imaginary line circumscribing multiple discharging activities
310. A.R.S. § 49-244(1) further provides that “[i]f the facility contains more than
one discharging activity, the [PMA] is described by an imaginary line circumscribing the
several discharging activities.” The Temporary APP requires that FCI “operate and
maintain all permitted facilities listed below to prevent unauthorized discharges pursuant
to A.R.S. [§] 49-201(12) resulting from failure or bypassing of BADCT pollutant control
technologies . . . .” ADEQ-7 at 4 § 2.3. The enumerated permitted discharge facilities
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included the “In-Situ Area Injection and Recovery Well Block,” the process water
impoundment, and the run-off pond, but not the underground mine workings.
311. Mr. Lagas testified that Mr. Nicholls asked him to review the PMA in FCI’s
application to make sure that it complied with A.R.S. § 49-244. Mr. Lagas testified that
the PMA in FCI’s application consisted of a line circumscribing the various discharging
facilities at the PTF facility, including the well field, the impoundment pond, and the
runoff pond.
312. Mr. Nicholls disagreed with Dr. Wilson’s criticism that the PMA was flawed
because it bore no relation to the DIA. Mr. Nicholls testified that FCI had defined the PMA
to encompass all present and future discharging facilities. Mr. Nicholls testified that for
the PMA, FCI drew a line around the discharge activities on the PTF, including the PTF
mine block, the impoundment pond, run-off pond, the pipeline corridor, and the
underground mine workings. See ADEQ-1 at 601.
313. ADEQ’s request for engineering information no. 5 to support FCI’s
application for a significant amendment raised a concern that the underground mine
workings could draw pollutants from the well field, in relevant part as follows:
Pursuant to A.A.C. R18-9-A202(A)(3 and 4) and BADCT (Section 3.4.4.3.2 and 3.4.5.3), please provide an underground map of the actual workings, not a surface plan view diagram, of the Conoco Mine. Please discuss the potential for mine subsidence and its impact on engineered structures below the mine workings, such as the pipeline that travels from the In-Situ Tank Farm to the process area. Only groundwater removal subsidence was apparently considered (Volume 2 of 4, Section 9.4.5.2, page 16). An evaluation of the underground workings (subsurface reservoir), as a potential longterm discharging facility, should be completed by an experienced individual familiar with this type of site condition. The mine apparently has several entrances (vertical shafts) that could, under the right hydrologic event, provide leach solution to the surface. It has been reported that the underground workings contain water, so we can assume that the mine workings are not hydrologically isolated. The actual amount of water in the mine workings as well as the overall condition of the mine is
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unknown. Engineered controls (grouting, etc.) or other containment methods should be discussed. . . .
SWVP-310 at 24 (emphasis added). Mr. Nicholls acknowledged that FCI did not expect
to discharge pollutants at the underground mine workings and that the subsidence
identified in ADEQ’s request for information was not identified in the Temporary
Application as a discharge activity. See ADEQ-7 at 4-5 § 2.3 (“Discharge Limitations”).
314. Mr. Nicholls testified that because ADEQ took the position that pollutants
could migrate through the workings as a discharge activity and required FCI to monitor
the workings, including the mine workings in the PMA was reasonable. Mr. Nicholls
pointed out that the broken line for the PMA for BHP’s pilot project that was included in
FCI’s application circumscribed quite a few facilities. See ADEQ-1 at 419.
315. Dr. Wilson estimated FCI’s proposed PMA was approximately 120 acres,
nearly 60 times the size of the 2.2-acre PTF well field where FCI planned to place
pollutants. See SWVP-832 at 20 (based on ADEQ-1 at 601). Dr. Wilson opined that
the 120-acre PMA in the permit could not be reconciled with A.R.S. § 49-244. To
illustrate the differences in scale between the 2.2-acre PTF well field, where FCI
expected to place pollutants, and the PMA, where it was permitted to place pollutants,
Dr. Wilson flipped the horizontal two-dimensional depiction of the PMA on its side to
show how small the subsurface IRZ was compared to the 120-acre site. See SWVP-
832 at 21. Dr. Wilson opined that by authorizing the PMA, ADEQ was approving the
discharge of pollutants in the much larger area.
316. Dr. Wilson testified that according to Webster’s Dictionary, the word
“circumscribe” had a geometric component that required that the line touch as many
points of the circumscribed facilities as possible.
317. Dr. Wilson acknowledged that ADEQ was concerned about the need to
monitor the underground mine workings for potential migration. Dr. Wilson noted that
ADEQ seemed to be concerned about water quality monitoring, not discharge
monitoring. Dr. Wilson opined that although the Temporary APP used the term
“discharge monitoring” for the PLS Tank, Raffinate Tank, Process Water Impoundment,
and Runoff Pond, none of these facilities involved a discharge. See SWVP-7 at 6 §
2.5.1. Although it was reasonable for ADEQ to require monitoring of the underground
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mine workings, it was not reasonable to include them in the PMA because the workings
were not where pollutants would be placed. Dr. Wilson testified that the boundary of the
120-acre PMA in the APP was too loose to be considered as circumscribing the
discharge activities at the PTF. See SWVP-832 at 20.
3.8.4 The money that FCI will save by using existing POC wells
318. A.R.S. § 49-244(2)(b) provides an exception to A.R.S. § 49-244(1)’s
requirement that “the [POC] is the limit of the [PMA],” in relevant part as follows:
A [POC] for hazardous substances other than that identified in paragraph 1 may be approved by the director if the facility owner or operator can demonstrate . . . : . . . . (b) The alternative [POC] will allow installation and operation of the monitoring facilities that are substantially less costly. . . .
FCI’s application did not include any estimate of the costs to construct new wells or the
money that FCI would save by using existing POC wells from BHP’s commercial mine in
the PTF.
319. Mr. Johnson testified that each new POC well will cost more than $100,000
to drill. Mr. Johnson testified that he discussed the cost savings from using existing POC
wells with Ms. Widlowski and Mr. Smit.
320. Mr. Nicholls testified that if FCI had not used the existing POC wells, a well
screened in the UBFU would cost $70,000 and a well screened in the LBFU would cost
$100,000. It would have cost FCI approximately $370,000 to drill four new wells to
replace the existing POC wells. Mr. Nicholls testified that he conveyed the additional
costs of drilling new POC wells to Ms. Widlowski.
321. Mr. Nicholls testified that the USEPA required FCI to abandon wells within
the AOR that would not be part of the PTF and that all wells in the AOR must conform to
Class III specifications, which increased the cost of well construction between $30,000
and $50,000. Mr. Nicholls and Mr. Brown testified that M54-LBF and M54-O were
located outside the UIC permit’s AOR to reduce cost because otherwise, they would
have to be Class III wells.
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322. FCI’s application stated that A.R.S. § 49-244(2) provided that ADEQ may
approve POCs in “locations other than at the limit of a [PMA] if the location at the edge of
the PMA . . . would result in substantially more cost than an alternate location.” ADEQ-1
at 596. Ms. Widlowski testified that the reference to A.R.S. § 49-244(2) in FCI’s
application sufficed to invoke the exception to the general rule that POCs should be
placed at the limit of the PMA. Ms. Widlowski testified that based on common sense,
using existing wells was substantially less costly than drilling new wells. Ms. Widlowski
explained that alternative POC locations are typically established through negotiations
and informal discussions between the applicant and ADEQ.
3.8.5 Distances between POC wells and reasonably foreseeable future drinking water sources (appeal issues 45, 47, and 92)
323. A.R.S. § 49-244(2)(b) further provides the following limitations to an
alternative POC location that is less costly:
In no event shall an alternative [POC] be further from the boundary specified in paragraph 1 than is necessary for purposes of this paragraph . . . and in no event shall it be so located as to result in an increased threat to an existing or reasonably foreseeable drinking water source. In addition an alternative [POC] for a hazardous substance pursuant to this subdivision shall never be further downgradient than any of the following: (i) The property boundary. (ii) Any point of an existing or reasonably foreseeable future
drinking water source. (iii) Seven hundred fifty feet from the edge of the [PMA].
The new M54 POC wells are approximately 500 feet from the PMA in the Temporary
APP and approximately 730 feet from the nearest injection well in the PTF well field.
The four existing POC wells approved in the Temporary APP are approximately 700 feet
from the PMA and more than 900 feet from the nearest injection well in the PTF well
field.
324. Mr. Lagas testified that the existing POC wells are within 750 feet of the
PMA, did not threaten any existing or reasonably foreseeable sources of drinking water,
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and are within the boundaries of the state trust land. Mr. Nicholls testified that ADEQ
instructed FCI to consider only existing drinking water wells, not reasonably foreseeable
drinking water wells, because economics, development, and forecasts can change. Mr.
Nicholls testified that because ADEQ instructed FCI only to protect existing downgradient
users, FCI did not investigate what wells might come online in the future, but only notified
ADEQ of licensed wells that were identified in ADWR’s records.
325. Mr. Smit testified that the POC wells for the PTF were located within FCI’s
leased state trust land’s boundaries and that there were no existing or reasonably
foreseeable drinking water wells nearby. Mr. Smit testified that ADEQ did not find
anything arbitrary about the PMA that FCI designated in its application and that data from
BHP’s pilot project would not be considered in setting the PMA or locating the POC
wells. Mr. Smit explained that A.R.S. § 49-244 was “broadly written” and allowed ADEQ
“some judgment.”
326. Mr. Hodges testified that Johnson has submitted an application to ADWR
to convert a well that is 1½ miles from FCI’s PTF well field, but ADWR had not yet
approved the well. Pulte may have “bladed over” the well during the development of
Anthem at Merrill Ranch.
327. Mr. Hodges testified that within the next two years, Johnson plans to drill
wells for the Montera subdivision in close proximity to the PTF well field, although it has
not yet submitted an application for the necessary permit to ADWR.
328. Mr. Costa testified that the Town has plans to drill wells downgradient from
the PTF well field to provide for the Town’s anticipated population growth.
3.8.6 The POC wells’ ability to monitor escaped pollutants from the PTF well field (appeal issues 6, 7, 30, 45, 46, 47, and 85)
329. A.R.S. § 49-244 provides that “[t]he [POC] is the point at which compliance
with [AWQS] shall be determined.” Ms. Widlowski and Mr. Bryan explained that the POC
wells were the point at which compliance with AWQS would be measured, not where
ADEQ expected that contamination would be detected.
330. Ms. Widlowski testified that it was not necessary for the POC wells to
monitor escapes of pollutants during the operation of the PTF because MW-01 would
provide early detection of any escaped pollutants. Ms. Widlowski acknowledged that
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because monitoring well MW-01 was not a POC well, ADEQ will not be able to take any
enforcement action if contaminants reached MW-01.
331. Mr. Mendolia testified that FCI showed good faith during its negotiation with
ADEQ on the terms of the Temporary APP, that ADEQ never determines the locations of
the PMA or POCs, and that ADEQ only accepts or rejects the applicant’s proposed
locations. Mr. Mendolia explained that if a condition is necessary to protect the aquifer,
ADEQ mandates that it be included in the APP, but that ADEQ does not want to be liable
for the sufficiency of the APP, especially the POCs, PMA, and well design. Mr. Mendolia
testified that as long as the proposed POCs and PMA are not “too far-fetched,” ADEQ will
approve them. Mr. Mendolia testified that ADEQ reviews many permit applications and
that the review process and the final terms of the Temporary APP issued to FCI were
consistent with ADEQ’s past practices.
332. Mr. Johnson testified that FCI does not want the POC wells to be too close
to the PTF well field because transient conditions could influence the POC wells. Mr.
Johnson testified that he had many discussions with Mr. Smit and Ms. Widlowski about
the location of the POC wells and that they seemed to understand and appreciate his
concerns.
333. Ms. Widlowski acknowledged that Mr. Nicholls provided the following
average groundwater flow rates of the water bearing formations in the PTF:
UBFU 0.55 ft/day
LBFU 0.18 ft/day
Oxide 0.015 ft/day
ADEQ-8 at 244 (Mark Nicholls’ July 16, 2012 email). Ms. Widlowski acknowledged that
the POC wells were more than 700 feet from the PTF well field boundary and that the
duration of the PTF was limited to 24 months. Using the figures that Mr. Nicholls had
provided, Ms. Widlowski calculated that it would take contaminants approximately 2,500
days to travel 500 feet in the UBFU. Using a calculator, Ms. Widlowski estimated that it
would take approximately 11.6 years for contaminants from the PTF to reach the POC
wells.
334. Appellants objected to the location of the permitted POC wells because it
would take at lease a decade for any contaminants from the PTF to reach them, long
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after ADEQ may have issued the significant amendment to the life-of-facility APP for the
commercial mine. Dr. Wilson suggested alternate locations for the POC wells that were
closer to the PTF well field, including MW-01 and monitoring wells included in FCI’s
USEPA UIC permit application. See ADEQ-9A at 11260.
335. Mr. Smit and Ms. Widlowski acknowledged that it would take a long time
for contaminants to reach the POC wells permitted in the Temporary APP. Mr. Smit
testified that if pollutants escaped the well field, he could say with a high degree of
probability that they would reach monitor well MW-01 to the northwest, which would
monitor for pH, sulfate, and TDSs, and require FCI to report such constituents to ADEQ.
Mr. Smit referred to ADEQ’s response to Appellants’ comments about whether the POC
wells in the Temporary APP complied with A.R.S. § 49-244, in relevant part as follows:
Monitoring well MW-01 is not designed to satisfy the statutory requirements of A.R.S. §[§] 49-243 and 49-244 in order to determine APP compliance objectives. Rather as the name implies, it is a monitoring location to determine potential impacts within the time frames of the Temporary APP. ADEQ will review the chemical concentrations at MW-01 from the Quarterly Reports as required by Section 2.7.4.4. The sampling results from MW-01 will be used for the following: (a) calibrate the geochemical modeling for commercial operations, (b) estimate aquifer loading (c) demonstrate hydraulic control beyond the observations wells, and (d) confirm the DIA for the PTF operations. ADEQ believes that the downgradient fault plane projection from the PTF well field is adequately monitored by proposed MW-01 and POC M54-O, both in the Oxide Unit. Monitoring well MW-01 is proposed to be installed in the downgradient groundwater direction at or near the PTF well field boundary. MW-01 will be a nested well screened equivalent to the proposed injection intervals and to the same depth of injection. MW-01 may intercept up to three of the projected fault planes: Rattlesnake, Thrasher, and Sidewinder Faults, depending on placement of the well. POC well M54-O is proposed to be installed to the same depth of injection, and is screened across the projected fault planes of the Rattlesnake and Thrasher Faults further downgradient from the PTF. Any “theoretical” solution migration (i.e. contaminant bypass) along those faults under the proposed PTF well field would be
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evident by downgradient groundwater quality changes observed in MW-01 and/or M54-O.
ADEQ-10 at 174 (emphasis in original).
336. Ms. Widlowski explained that ADEQ could not designate MW-01 as a POC
well because it was located inside the PMA. Ms. Widlowski acknowledged that
contaminants that migrated directly north or west might not reach MW-01, but pointed out
that the POC wells would detect such migration eventually. Ms. Widlowski testified that
ADEQ did not expect contaminants to leave the well field because the Temporary APP
required FCI to maintain hydraulic control.
337. Mr. Smit testified that although Dr. Wilson was concerned that some
contaminants might remain in the PMA after closure of the PTF, Arizona APP statutes and
regulations only allowed ADEQ to regulate substances at the POC wells. Mr. Smit
explained that if fluid migrated away from the PTF well field but did not result in an
exceedance at a POC well, FCI would not have violated the Temporary APP and that if
FCI did not violate the Temporary APP, FCI would had not have lost hydraulic control.
Mr. Smit added that ADEQ requires a real world impact before it concludes that a loss of
hydraulic control has occurred.
338. Mr. Nicholls did not agree that the POC wells did not meet APP legal
requirements or protect drinking water because they were too distant from the areas
within the PMA that will be impacted during the two-year operation of the PTF. Mr.
Nicholls believed that FCI will maintain hydraulic control and that contaminants will not
escape the PTF well field. Mr. Nicholls acknowledged that if contaminants escaped, they
could travel for years before being detected by the POC wells, long after the expiration of
the Temporary APP. Mr. Nicholls insisted that contaminants cannot escape and travel for
years without detection. Although Mr. Nicholls did not expect contaminants to escape, he
testified that dispersion would occur in the principal formation, the LBFU, as opposed to a
channelized flow between the POC wells, and that either MW-01 or the POC wells would
eventually detect the contaminants.
339. ADEQ’s Substantive Review Checklist states that the intent of POC
placement “is to achieve the earliest detection of any contaminants migrating out of the
PMA, for ‘maximum early warning’ of a problem that will require a remediation
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response.” SWVP-792 at 65 (quoting SWVP-398 at 6). Mr. Smit explained that ADEQ’s
Substantive Review Checklist was not an agency regulation or substantive policy
statement, but merely an internal tool that was not meant to be binding on ADEQ. Mr.
Smit acknowledged that although some of Dr. Wilson’s recommendations might make a
better permit, ADEQ did not believe that any of the recommendations were necessary to
protect the aquifer or for an adequate permit. Mr. Smit pointed out that A.R.S. § 41-
1001(21) defines “substantive policy statement” and that neither Mr. Bolitho’s power point
presentation nor the Substantive Review Checklist was a substantive policy statement.
Mr. Smit testified that ADEQ must require permit conditions that are authorized by statute
or rule, not on draft reports from other projects or suggestions made by third parties.
340. Dr. Wilson opined that the Substantive Review Checklist and Mr. Bolitho’s
power point presentation showed best practices. Dr. Wilson prepared an illustration to
show the maximum extent of sulfate migration, which under the Temporary APP was 2
mg/l over the background level, five years after the PTF was closed. See SWVP-792 at
67 (based on ADEQ-5 at 33). Dr. Wilson testified that if ADEQ’s guidance from the APP
Substantive Review Checklist was followed, the POC wells should be inside the
anticipated plume, or DIA.
341. Ms. Widlowski noted that Dr. Wilson did not testify that POC well M52-UBF,
located directly to the northwest of the lined impoundment pond, did not meet APP legal
requirements, as Appellants alleged. Ms. Widlowski testified that POC well M52-UBF was
properly located, downgradient from the impoundment pond, and screened in the UBFU.
See ADEQ-1 at 601, ADEQ-5 at 25. Dr. Wilson’s power point presentation regarding the
proper location for a POC well confirmed the appropriateness of M52-UBF’s placement.
See SWVP-792 at 65.
342. Ms. Widlowski and Mr. Bryan testified that the impoundment pond had a
double liner that would notify FCI of any catastrophic failure long before any contaminants
reached POC well M52-UBF.
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3.8.7 The cone of depression as a liner, dike, or other barrier
343. A.R.S. § 49-244(1) provides further that “[t]he [PMA] includes horizontal
space taken up by any liner, dike or other barrier designed to contain pollutants in the
facility.” FCI’s application mentioned the cone of depression as a barrier, in relevant
part as follows:
The hydraulic control wells will establish a measurable and continuously monitored cone of depression that ensures that groundwater is drawn inward toward the injection and recovery wells, physically preventing any fluids, either natural or injected, from flowing outward from the PTF well field. The cone of depression will be monitored by means of a series of observation wells located outside of, but paired with, the network of hydraulic control wells. . . . . During the proposed project, hydraulic control will be maintained by means of a measurable and continuously monitored cone of depression formed around the PTF well field. . . . . Hydraulic control is based on the fact that recovery wells will draw groundwater in toward the PTF well field, creating a cone of depression around the PTF well field.
ADEQ-1 at 771 (Attachment 14C §§ 14C.4, 14C.4.1, and 14C.4.2). FCI’s application
did not mention any specific cone of depression to explain or to justify the PMA shown
in the application.
344. Dr. Wilson noted that the 1-foot inward gradient was the only specific,
measurable, hydraulic control barrier required by the Temporary APP. See SWVP-832
at 23. Dr. Wilson pointed out that before Mr. Nicholls’ and Mr. Brown’s testimony,
neither witness testimony nor any exhibit quantified any hydraulic control mechanism
other than the 1-foot inward gradient. Dr. Wilson noted that Table 4.1-8 in the
Temporary APP did not include any specific cone of depression as a barrier among the
required BADCT hydraulic control mechanisms and that the 1-foot inward hydraulic
gradient was measured between observation and recovery wells, not outside the well
field. See ADEQ-7 at 41. Dr. Wilson noted further that Temporary APP § 2.7.4.4(2)
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required that “[h]ydraulic control shall also be demonstrated through the submittal of
potentiometric groundwater contour maps which depict the monthly minimum, monthly
average and monthly maximum inward hydraulic gradient toward the recovery wells (i.e.
cone of depression) using groundwater elevations collected at the PTF well field.”
ADEQ-7 at 21. Section 2.2.1.1 of the APP required hydraulic control to be maintained
“by pumping recovery wells at a rate greater than the injection rate in order to maintain
a cone of depression.” SWVP-7 at 3. Dr. Wilson noted that although the Temporary
APP included language about net extraction, there was no mention, support, or
justification for a specific cone of depression. Based on the lack of quantification, Dr.
Wilson concluded that the only hydraulic control barrier in the Temporary APP was
located inside the PTF well field.
345. Mr. Smit acknowledged that pollutants were not expected to be placed on
the western edge of the PMA or anywhere but in the PTF well field, impoundment and
run-off ponds, and pipeline corridor, but testified that ADEQ has a considerable degree
of freedom in approving a PMA boundary. Mr. Smit initially testified that he did not
know of any liner, dike, or other boundary that would justify the PMA for the PTF, but on
a later date testified that the PMA in the Temporary APP was based on the cone of
depression.
346. Ms. Widlowski did not mention the cone of depression as a barrier during
her direct testimony. On the second day of Ms. Widlowski’s testimony, during
Appellants’ cross-examination, she testified that she heard testimony that the cone of
depression was the basis of the PMA and that it extended beyond the observation wells
and the PTF well field boundary. Ms. Widlowski explained that she knew that the PMA
was based on the cone of depression before the hearing but that she did not remember
FCI mentioning a specific cone of depression and that such information would have been
significant. Ms. Widlowski did not recall seeing anything in FCI’s application that referred
to the cone of depression to justify the western boundary of the PMA.
347. Ms. Widlowski later testified in response to FCI’s attorney’s questions that
because the hydrological barrier in an ISL mine was the cone of depression, the PMA for
the PTF well field should include the horizontal space taken up by the cone of depression.
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Ms. Widlowski testified that because the expected cone of depression extended beyond
the POC wells, the designated PMA in the application was reasonable and conservative.
348. Mr. Bryan referred to § 3.4.2.3 of the BADCT Manual’s discussion of in-
situ leaching that “the main difference between leaching using the water table for
capture and leaching with capture above the water table is that leaching using the water
table for capture may include a BADCT that utilizes the aquifer (hydraulic sink, cone of
depression, etc.) to manage and control leach solution.” SWVP-156 at 154. BADCT §
3.4.5.3.1 refers to the “cone of depression” as a discharge control element, in relevant
part as follows:
The following discharge control design elements have been used as part of discharge control systems to achieve BADCT for deep well injection facilities. . . . It should be noted that application of the design elements is site specific. Thus all the design elements may not be a part of BADCT for all facilities. • Pumping to create a cone of depression to contain, capture
and recycle solutions. Recovery wells should be pumped at a rate greater than the injection rate in order to maintain a cone of depression . . . .
SWVP-156 at 164 (emphasis added).33
349. Mr. Johnson testified that FCI will recover between 3% and 20% more
solution than it injects. BADCT § 1.2.4.6, concerning hydraulic barriers, provides in
relevant part as follows:
Cones of depressions in groundwater or slurry walls can be used to contain in-situ leach solutions. Except for in-situ leaching, the use of a hydraulic or physical barrier as a consideration in BADCT design is appropriate only in the context of discharge reduction prior to a pollutant reaching an aquifer.
SWVP-156 at 59. Mr. Johnson testified that the cone of depression was one of the ways
that FCI would ensure that the solution did not migrate into the LBFU.
33 BADCT § 3.4.5.3.1 also prohibits injection into or between underground sources of drinking water. See Finding of Fact No. 82, above.
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350. Dr. Wilson testified that the berm around the PTF well field was consistent
with a surface barrier. Dr. Wilson noted that although BADCT § 1.2.4.6 recognized that
cones of depression can be used to contain in-situ leach solutions, BADCT § 3.4.5.3.1
advised regulated parties to look to the beginning of the cone of depression, not its end.
351. Mr. Nicholls acknowledged that the definition of hydraulic control in the
application did not refer to the cone of depression, but testified that because the cone
would vary throughout PTF operations, the application did not include a specific
number.
352. Mr. Nicholls testified that the AOR under the USEPA UIC permit was a
defined component under the UIC program that was based on calculations of fluid flow
under specific conditions. Mr. Nicholls explained that the relation of the AOR to the cone
of depression was that the two concepts were the same, but that the cone of depression
may be bigger than the AOR. Mr. Nicholls testified that he would expect a cone of
depression around each recovery well and that the cone of depression would extend
beyond the observation/recovery wells.
353. Haley & Aldrich prepared a chart based on water levels from BHP’s POC
wells and observation wells to show groundwater levels and direction of groundwater flow
in the areas surrounding BHP’s pilot project in January 1998. See FC-72. Mr. Nicholls
explained that because the pressure response was induced by pumping, the measured
groundwater elevations decreased closer to the BHP well field. Mr. Nicholls testified that
the cone of depression extended 1,000 feet or further during BHP’s pilot project.
354. Mr. Nicholls testified that according to FCI’s engineers, FCI needed to
operate the recovery wells close to the maximum AL of 300 gpm to operate the SX/EW
plant.
355. Mr. Nicholls testified that FCI used the information from BHP’s pilot project
to draw the PMA on FCI’s application for the Temporary APP for the PTF. During BHP’s
pilot project, it was pumping 160 gpm and injecting 120 gpm, for a net extraction of 40
gpm in the oxide zone. In contrast, FCI intended to pump the maximum AL allowed under
the Temporary APP of 300 gpm and to inject the maximum AL of 240 gpm, for a net
extraction of 60 gpm. Mr. Nicholls testified that FCI expected a cone of depression that
would be at least the size of BHP’s cone of depression.
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356. On the third day of Mr. Brown’s testimony, during Appellants’ cross-
examination, he testified that at a minimum, the cone of depression for the PTF would
extend 1,600 feet based on a net recovery rate of 60 gpm. Hydrogeologically, Mr.
Brown did not distinguish among wells but considered the aggregate. Mr. Brown
acknowledged that he had calculated the cone of depression the night before
Appellants’ cross-examination.
357. Mr. Brown testified that because Mr. Johnson said that the SX/EW plant
needed net extraction of 300 gpm to operate, the PTF must be run at the limit of the
APP and that the 60 gpm net recovery would be maintained. Mr. Brown testified that he
modeled flow based on a 60 gpm net extraction based on the maximum injection and
extraction allowed by the Temporary APP. See FC-25 at 142 Plate 40-2. The cone of
depression on the first plate was 680 feet wide and the cone of depression on the third
plate extended beyond the edge of the plate, so was more than 1,280 feet wide.
358. Mr. Brown testified that when he wrote his report, he knew that the cone of
depression would be at least 600 feet based on his modeling. He did not know exactly
what BHP’s cone of depression had been, but he knew the FCI cone of depression
would be larger. Mr. Brown acknowledged that the 1,600-foot cone of depression
probably extended beyond the state trust land boundary. Mr. Brown opined that the
PMA can be drawn in multiple locations and that although he did not suggest or
formulate the PMA in the Temporary APP, he performed scientific analysis to determine
that the PMA was appropriate under A.R.S. § 49-244. When asked if POC wells could
be located downgradient anywhere within 1,600 feet of the PTF well field, Mr. Brown
testified that the POC wells were located through agreement and that in a successful
operation, he would not expect contaminants to ever reach the POC wells.
359. Mr. Brown’s attention was called to FCI’s March 2011 application to
USEPA to amend the UIC permit that described the following model outcome:
Using hydraulic properties and hydrostratigraphic unit thicknesses representative of [PTF] Site conditions, simulations conducted using the MODFLOW/MT3D model described above resulted in radial injectate migration distances that ranged between approximately 90 and 140 feet from the simulated injection well.
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SWVP-264 at 7 § A.3.3. Mr. Brown did not review FCI’s UIC permit application and did
not know the differential used to calculate the figures cited. Mr. Brown testified that a
differential of significantly less that 60 gpm would produce a cone of depression of
between 90 and 140 feet.
360. Notwithstanding the 1,600-foot cone of depression, Mr. Brown
acknowledged that the distance that contaminants might travel beyond the recovery
wells was in the order of a well spacing, or 50 to 70 feet. See FC-25 at 142. If the
injection well was drilled through a fault, a contaminant might travel 100 feet. See FC-
25 at 144. Mr. Brown acknowledged that he had not modeled or calculated a cone of
depression for a net recovery of less than 60 gpm and that the cone of depression could
be significantly less than 1,600 feet.
361. Section 10.3.3 of FCI’s application provided in relevant part as follows:
A report prepared by M3 Engineering (the “M3 Report”) describing proposed flow streams and nominal flow rates is appended to Attachment 9 as Exhibit 9C. The maximum anticipated injection rate is 60 gpm per well, but in no case may injection occur at a pressure greater than the fracture gradient of 0.65 pounds per square inch per foot (psi/ft). Therefore, the maximum combined injection rate from the four injection wells will be approximately 240 gpm, but may be significantly less depending on the in-plant flow balance and characteristics of the oxide zone. The combined rate of PLS recovery must exceed, on a daily basis, the combined injection rate to maintain hydraulic control. The exact amount of excess recovery will depend on in-plant flow balances and conditions in the IRZ. However, it is estimated to be not more than 10 percent. Assuming that the maximum injection rate is 240 gpm, the maximum required recovery rate would be 264 gpm. For contingency purposes, the surface facilities have been designed for a PLS flow rate of up to 300 gpm. The rate of recovery will vary from well to well as necessary to maintain hydraulic control and to optimize copper recovery. . . . . . . . The results of analyses conducted during the hydraulic control test indicate that several days may elapse before enough PLS reaches the recovery wells to be detected in the groundwater pumped from the recovery wells and
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several months may elapse before copper concentrations reach levels required for beneficiation in an SX/EW plant.
ADEQ-1 at 406 (emphasis added). Mr. Nicholls testified that it was not true that the
excess recovery rate could not exceed 10% of the injection rate, but that the application
was based on FCI’s understanding at the time. Mr. Nicholls acknowledged that if the
recovery rate was only 240 gpm, the cone of depression would be smaller than if the
recovery rate was 300 gpm.
362. Mr. Johnson testified that the PMA was whatever cone of depression
existed at the PTF and that the cone of depression could extend for hundreds of feet,
depending on porosity, conductivity, and other factors. Mr. Johnson testified that the
Temporary APP allowed FCI to inject a maximum of 240 gpm and to extract a maximum
of 300 gpm, but acknowledged that the Temporary APP does not contain a required ratio
of pumping to injection that must be maintained, only that the amount pumped must
exceed the amount injected and that a 1-foot inward hydraulic gradient must be
maintained. See ADEQ-7 at 41 Table 4.1-8. Mr. Johnson testified that the optimal ratio
between injection and pumping was one piece of information that FCI sought to obtain in
the PTF to include in its application for the significant amendment to the commercial
permit.
363. Dr. Wilson did not agree with Mr. Nicholls’ and Mr. Brown’s testimony that
the “space taken up by any liner, dike or other barrier designed to contain pollutants in
the facility” in A.R.S. § 49-244(A) included a cone of depression to define the PMA. Dr.
Wilson testified that he calculated the cone of depression three or four weeks before his
rebuttal testimony and determined that the cone varied tremendously depending on
pumping and other conditions. A net recovery of 60 gpm produced a cone that was
more than 1,000 feet, 30 gpm produced a cone that was close to 1,000 feet, and 5 gpm
produced a cone that was close to 100 feet.
364. Dr. Wilson testified that if pollutants can be placed anywhere in the 120-
acre PMA, the barrier of the 1-foot inward gradient under the APP would have failed.
Dr. Wilson noted that a 1-foot inward gradient would produce a cone of depression that
was in the tens of feet. There was no logic to exercising hydraulic control over a small
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2.2-acre area, but allowing pollutants over a large 120-acre area. Dr. Wilson rejected
the suggestion that hydraulic control in a 2.2-acre mine could be measured a mile away.
3.9 The geochemical model for post-closure restoration
365. Section 2.9.1 of the Temporary APP requires FCI to submit a closure plan,
in relevant part as follows:
Within 90 days of the effective date of this permit, the permittee shall submit for approval to the Groundwater Section, a Closure Plan which meets the requirements of A.R.S. § 49-252 and A.A.C. R18-9-A209(B)(3) and includes the following topics: . . . . 2. Contingency mine block rinsing and sampling, as needed. 3. Confirmation PTF mine block sampling requirements after
the completion of the pilot test. . . . . 6. An initial 5 year post-closure groundwater monitoring
period, with an evaluation to complete additional post-closure monitoring.
ADEQ-7 at 24.
366. FCI’s application included a sealed technical memorandum from
Schlumberger Water Services (“Schlumberger”) dated February 22, 2012. See ADEQ-1
at 550. Schlumberger described the purpose and objectives of the technical
memorandum in relevant part as follows:
The primary purpose of the geochemical evaluations being conducted for the temporary APP application is to use site-specific geologic, hydrologic, and geochemical data in numerical computer modeling simulations of ISCR at the PTF to estimate the composition of process fluids and streams, and the potential impacts on surrounding groundwater quality. . . . The primary objectives of the geochemical model simulations developed for the PTF include:
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• Estimate the concentration of constituents in the ISCR process and solutions as identified in the existing APP 101704.
• Predict the potential impacts on groundwater quality
after cessation of operations.
ADEQ-1 at 551. The same geochemical model was used in FCI’s 2011 application for a
significant amendment. See SWVP-792 at 75 (referring to SWVP-253). Schlumberger
summarized the results of its technical memorandum in Table 3.1, which was also
included in FCI’s application. See ADEQ-1 at 558; SWVP-792 at 77. Table 3.1 was
sealed by a registered geologist and was based on data from BHP’s restoration process
after its 1997-1998 pilot project.
367. FCI’s application for the Temporary APP stated that it used Table 3.1 for the
following purposes:
The forecast constituent concentrations were used in models to evaluate potential post-closure migration of constituents, to estimate constituent concentrations in the lixiviant, to determine compatibility with materials proposed for use in the benefication and storage of ISCR solutions, to identify the major constituents of solutions that might be involved in leaks or spills, and to identify constituents that should be included in [the] groundwater monitoring program.
ADEQ-1 at 407 § 10.3.4. FCI’s application also stated that “Table 3.1 of Exhibit 10C
describes forecast compositions of the PLS and raffinate (lixiviant) during operations,
while hydraulic control is being maintained, and the forecast composition of restored
groundwater in the IRZ (referred to in Table 3.1 as ‛Groundwater After Block Rinsing’).”
ADEQ-1 at 580.
368. FCI’s application also included a rinsing flow sheet that was sealed by a
registered engineer that informed ADEQ of FCI’s planned water management practices
and flow rate during closure. See ADEQ-1 at 397-398. The rinsing flow sheet showed
two inputs, well water and neutralizing agents, at the top left-hand corner based on the
geochemical model summarized in Table 3.1. The rinsing flow sheet showed clean
rinse water at a nominal flow rate of 190 gpm, formation water at 60 gpm, and rinse
water pumped out at 250 gpm.
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369. Mr. Brown’s report stated that the Temporary APP was “performance-
based” and set performance goals for groundwater restoration, but did not require a
time or method for achieving restoration requirements. See FC-25 at 74, 156 (Plate 75-
1). Mr. Brown testified that he did not think that there was any nexus between the
geochemical model in Table 3.1 in the application, the rinsing flow sheet, and FCI’s
current restoration model.
370. Dr. Wilson explained that the geochemical model was used to predict
chemistry changes over time, to support the calculation of acid balance, and to extend
predictions through the rebound period during closure. See SWVP-792 at 119. Column 7
of Table 3.1 set forth the forecast composition of groundwater after block rinsing,
including arsenic at 15 ppb, nitrate at 110 ppm, and sulfate at more than 600 ppm.
3.9.1 Arsenic (appeal issues 59, 82, 83, and 84)
371. Dr. Wilson noted that the forecast concentration for arsenic in the PLS in
Table 3.1 was 200 ppb. The forecast concentration after rinsing was 15 ppb, exceeding
the federal primary MCL of 10 ppb for drinking water. Dr. Wilson noted that an August
2012 draft of the Temporary APP set an AQL for arsenic at 10 ppb and an AL for arsenic
at 8 ppb. See SWVP-792 at 80 (citing SWVP-380 at 29 (August 1, 2012 e-mail)). Dr.
Wilson noted that even though the AWQS for arsenic was 50 ppb, drinking water wells in
the aquifer currently require no treatment for arsenic. Dr. Wilson opined that FCI should
be required to meet the federal primary MCL because if arsenic is above the federal
drinking water standard, water utilities must pay to treat the water.
372. Section 2.5.7 of the Temporary APP established a use protection level
(“UPL”) for arsenic of 10 ppb. The boundary at the northwest corner of the state trust
land was designated as the downgradient point at which the UPL would be applied.
Although the Temporary APP does not require a POC well to monitor compliance with
the UPL for arsenic, the Temporary APP provides as follows:
Consistent with ADEQ’s substantive policy statement titled “Using Narrative Aquifer Water Quality Standards to Develop Permit Conditions for [APPs]” . . ., an alert level for arsenic shall be established for each of the POC wells M14-GL, M15-GU, M22-0, M23-UBF, M54-LBF, and M54-O for the in-situ well field through consideration of fate and transport of
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arsenic in groundwater to ensure that the UPL is not exceeded at the northwest corner of the State Mineral Lease Land . . . .
ADEQ-7 at 9 § 2.5.7.
373. Mr. Smit testified that in A.R.S. § 49-223(A), the Arizona legislature adopted
as AWQS the federal primary drinking water MCLs that were established before August
13, 1986. Although the federal primary MCL for arsenic had since been reduced from 50
ppb to 10 ppb, ADEQ has not proposed to adopt the revised federal MCL as Arizona’s
AWQS. Mr. Smit referred to ADEQ’s substantive policy statement 3010.000 regarding
using narrative AWQS to develop conditions for APPs. See ADEQ-11. Under this
substantive policy, Mr. Smit testified that FCI agreed to the UPL for arsenic of 10 ppb at
the property line of the state trust property in the Temporary APP, but that ADEQ could
not legally impose a lesser AQL at the POC wells.
374. Ms. Widlowski testified that the AL for arsenic at the POC wells was based
on a consultation with Haley & Aldrich about its model that predicted a UPL of 10 ppb or
less at the state trust land property line. Ms. Widlowski did not know whether the model
was accurate. Ms. Widlowski noted that FCI was required to update its models at the end
of the PTF, but was not required to test its models. Ms. Widlowski acknowledged that if
FCI did not detect errors that were present in its fate and transport model for arsenic,
ADEQ would not know whether FCI complied with the UPL for arsenic.
375. Mr. Nicholls noted that the fate and transport model for arsenic at the
northwest boundary of the state trust land had not yet been created. Mr. Nicholls testified
that arsenic would be monitored at MW-01 and the POC wells and that the information
from the monitoring would be used to set ALs at the wells and to create a model. Mr.
Nicholls opined that the Temporary APP required sufficient monitoring for arsenic to
validate FCI’s fate and transport model and that if the POC wells detected increased
arsenic, ADEQ may require FCI to put a POC well on the property line.
376. Dr. Wilson noted that the northwest boundary of the state trust land is some
distance from the PTF well field, that there is no requirement that arsenic be any lower
anywhere else on the property, and that the Temporary APP did not specify how the
arsenic will be reduced from the 15 ppb predicted by Table 3.1 in the well field to 10 ppb
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at the property line. Dr. Wilson testified that although the Temporary APP requires FCI to
calculate the level of arsenic at the property line using a fate and transport model, arsenic
chemistry is complex and transport mechanisms are not well known. Dr. Wilson has
never seen a model used to verify compliance with a permit requirement.
377. Mr. Kline and Mr. Johnson testified that BHP used raffinate from the San
Manuel mine and that the raffinate contained minor amounts of arsenic. Mr. Kline testified
that because the San Manuel mine was closed and was no longer a source of raffinate,
FCI would not release arsenic into the aquifer during the PTF. Even so, Mr. Kline noted
that BHP never had an exceedance of arsenic at its POC wells.
378. Dr. McNulty testified that arsenic would not be a problem in the PTF
because arsenic was not expected to be present in the raffinate or produced in significant
quantities in FCI’s injection and recovery operations. Dr. McNulty did not expect to see
arsenic in the ore body or in the PLS because the 20 to 24 ore samples that he analyzed
for arsenic were well below the detection limit of 1 ppm for arsenic. Dr. McNulty testified
that compared to other copper deposits, the level of arsenic in the Poston Butte deposit
was very low. Dr. McNulty testified that he analyzed water from the formation that FCI
planned to use for rinsing during closure and that the results of 16 tests for arsenic were
all less than the detection limit of 1 ppm. Dr. McNulty explained that metallurgists usually
perform analyses using ppm because analyses using ppb are more expensive. Dr.
McNulty testified that because he did not expect arsenic to be a constituent of concern at
the PTF, he did not calculate projected arsenic concentrations in ppb.
379. Dr. Wilson testified that if the arsenic at BHP’s pilot project was due to its
use of raffinate from the San Manuel mine, he was still concerned because BHP’s data
showed that arsenic was increasing in the injection wells at BHP’s well field. See
SWVP-832 at 27. Dr. Wilson testified that the POC wells in their current locations at the
PTF would not detect any arsenic problems. Dr. Wilson opined that if the UPL in the
Temporary APP was enforceable, it must be enforced by a POC well in a specific
location.
380. Dr. Wilson opined that ADEQ may have waited to determine how it will
verify the arsenic level at FCI’s PTF due to divergent data from BHP’s post-closure
monitoring that showed that arsenic levels in the four injection wells had increased since
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the project ended, ranging from 8 ppb to 13 ppb in August 2010. See SWVP-792 at 83.
Dr. Wilson testified that the UPL for arsenic was a good first step, but that the standard of
care for a permitting agency required ADEQ to have pressed for enforcement of the
federal primary MCL at the POC wells. Dr. Wilson opined that ADEQ’s compliance with
its own regulations was necessary but not sufficient to meet the standard of care for a
permitting agency.
381. Mr. Nicholls testified that after 6-7 sampling events, arsenic remained the
highest in BHP’s injection wells, ranging from 8 ppb in BHP-8 to 13 ppb in BHP-7 and
BHP-6. See FC-50. Mr. Nicholls testified that the arsenic does not appear to have
migrated to the recovery wells and was relatively immobile where pH was above 5 in the
well field.
382. Mr. Brown disagreed that the Temporary APP unreasonably failed to
require FCI to evaluate its arsenic fate and transport model against arsenic data
collected after BHP’s pilot project or to explain the trend of increasing arsenic levels in
BHP’s injection wells that continued at least through 2010. See FC-25 at 85-86, 159.
Mr. Brown explained that after BHP’s pilot project, arsenic was taken from injection,
recovery, monitoring, and Westbay wells and that at the end of rinsing, arsenic was .018
mg/l, or 18 ppb. Mr. Brown testified that the arsenic concentration had dropped
significantly, then stabilized, then bounced back to some extent due to the cessation of
rinsing and arsenic that remained in the rock. Mr. Brown testified that such rebound
and dispersion is normal. Mr. Brown noted that all the wells were below the AWQS of
50 ppb and that all the wells except the injection wells were below the federal primary
MCL of 10 ppb.
3.9.2 Sulfate (appeal issues 61 and 70)
383. ADEQ has not set an AWQS and the Temporary APP did not set an AQL
for sulfate. Section 2.9.2 of the Temporary APP provided that sulfate would be an
indicator parameter during PTF mine block closure, in relevant part as follows:
The permittee will commence PTF closure after the pilot test mining phase has ceased. During mine block closure operations, the permittee will cease the injection of raffinate, and will initiate a mine block rinsing program . . . . At all times during initial block rinsing, the permittee will maintain hydraulic
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control by sustaining an inward hydraulic gradient within the mine block. The permittee will monitor the rinsing progress by analyzing the water recovered from well-field headers for sulfate concentration. When levels of sulfate in the headers have reached approximately 750 [ppm], the permittee will sample the injection well header discharges for constituents listed in Section 4.1 Table 4.1-7. If the results of the sampling show concentrations of parameters greater than the AWQS and or greater than the pre-determined mine block concentrations, then rinsing operations will continue until all compounds are below primary MCLs or AWQS or predetermined AWQS mine block concentrations. The permittee will sample all of the wells in the mine block undergoing closure to determine if the sulfate concentrations are less than 750 ppm and the pH is above 5.0 S.U. The permittee will continue rinsing each well until such time that the sulfate concentration in the well is less than 750 ppm and the pH is above 5 S.U.
ADEQ-7 at 24 § 2.9.2 (emphasis added).
384. Dr. Wilson submitted a comment asking ADEQ why it did not require FCI to
reduce sulfate to the current background limit when the USEPA secondary MCL for
drinking water was only 250 mg/l. ADEQ responded as follows:
The APP Program does through the use of a PMA allow the permittee to place pollutants within the test mine block for the purposes of in-situ leaching, allow for the release of chemicals into an aquifer at levels above the AWQS, as long as AWQS are met at the [POCs] or no further degradation of water quality relative to that pollutant occurs. The mine block rinsing standards proposed in Section 2.9.2 are more conservative to ensure that BADCT is met and AWQS will be maintained at the POCs, or no further degradation occurs relative to that pollutant. The 750 mg/l sulfate rinsing standard was a trigger concentration level to cease mine block rinsing and a concentration determined to be an acceptable sulfate
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standard with AWQSs would most likely be met in the mine block.
SWVP-792 at 84 (quoting ADEQ-10 at 100-01; emphasis in original). Dr. Wilson opined
that nothing prevented ADEQ from setting a UPL for sulfate.
385. Dr. Wilson acknowledged that ADEQ did not have an enforceable AWQS
for sulfate, but disagreed that USEPA’s nuisance standard was irrelevant. Dr. Wilson
noted that although USEPA’s secondary MCL was not enforceable, ADEQ had not made
any effort to negotiate a lower standard than 750 mg/l for sulfate in the Temporary APP,
which would render the aquifer unusable as a source of drinking water. Although no
statute required ADEQ to negotiate a limit for an unregulated substance, Dr. Wilson
opined that the applicable standard of care required that ADEQ attempt such negotiation.
386. Mr. Nicholls testified that FCI modeled placing 750 mg/l of sulfate in the
oxide unit, not the LBFU, and allowing the sulfate to migrate to reach the starting condition
of the DIA simulation. Mr. Nicholls testified that BHP had been required to rinse the mine
block to 750 mg/l and that sulfate had reached this level within a few months in the
outside wells. Mr. Nicholls testified that FCI felt that it was conservative to reach an
indicator of 750 mg/l for sulfate in the well field because when BHP’s last well reached
750 mg/l during its closure operations, the first wells were at 100-200 mg/l of sulfate.
387. Mr. Brown noted that Brown and Caldwell’s model that was included in
FCI’s application provided a composite estimate of the DIA five years after closure that
showed no sulfate contamination in the LBFU beyond the DIA and sulfate at 2 mg/l at
the boundary of the DIA. See ADEQ-1 at 695. Mr. Brown noted that the same model
predicted that most of the contamination would be in layer 10, the deepest layer of the
oxide zone. See ADEQ-1 at 693.
388. Mr. Nicholls noted that once sulfate reaches 750 mg/l during restoration,
FCI is required to start sampling other constituents of concern. Mr. Nicholls testified that
BHP reached 750 mg/l of sulfate in 10 pore volumes over 10-12 months. Mr. Nicholls
testified that as FCI removes water from pore spaces, the water is replaced by flow
caused by natural formation pressure. Mr. Nicholls explained that FCI’s closure estimates
were conservative because they included a greater mass of sulfate than FCI expects to
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be present during closure and that as the water becomes less acidic and the pH increases
to 5, constituents tend to precipitate out.
389. Ms. Widlowski and Mr. Bryan testified that groundwater flow was about 30
feet per year and that after five years, FCI’s fate and transport model predicted that sulfate
would migrate only 150 feet. See ADEQ-1 at 695, ADEQ-5 at 34. Ms. Widlowski and Mr.
Bryan noted that if sulfate took 30 years to reach a POC well, it would take many more
years to reach existing downgradient drinking water wells. Ms. Widlowski testified that
after FCI closed the PTF and restored the mine block as the Temporary APP required,
ADEQ had the authority to require as many rounds of testing for sulfate rebound as it
deemed necessary.
390. Dr. Wilson acknowledged that the Temporary APP set ALs for indicator
parameters that required FCI to report exceedances for sulfate. See ADEQ-7 at 12 §
2.6.2.4.1. Dr. Wilson also acknowledged that the ALs for sulfate in the Temporary APP at
three of the four POC wells was less than the federal secondary MCL of 250 mg/l. See
ADEQ-7 at 36 Table 4.1-7. Dr. Wilson explained that § 2.6.2.4.1 was an anti-degradation
standard based on ADEQ’s response to his comment suggesting that a narrative standard
be set for sulfate, which had stated in relevant part as follows:
The 750 mg/l sulfate target for mine block closure rinsing requirements was established through fate and transport considerations of when AWQS would most likely be met during the mine block rinsing process. The mine block rinsing standards proposed in Section 2.9.2 are conservative to ensure BADCT is met and that AWQS will be maintained at the POCs, or no further degradation occurs relative to that pollutant. Ambient groundwater sulfate levels vary across the site and within each water bearing unit. . . . [I]f applying a Narrative AWQS at 250 mg/l sulfate at the existing or potential point of groundwater withdrawal location (i.e. Johnson Utilities well), and considering the travel distances, along with advection and dispersion, the AL for sulfate at the POCs could potentially be much greater than those ALs currently established. . . .
ADEQ-10 at 226 (emphasis in original). Dr. Wilson noted that ADEQ’s response to his
comment regarding sulfate did not state that corrective action would be required if ALs
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were exceeded. Moreover, ADEQ’s response had made clear that the Temporary APP
was designed to protect existing wells, not wells that were reasonably foreseeable.
391. Mr. Brown disagreed that ADEQ unreasonably failed to include additional
narrative standards in the Temporary APP for contaminants that did not have AWQS,
but could have serious impacts on downgradient drinking water. Mr. Brown testified that
all constituents used or generated in the mining process have AWQS except for pH and
sulfate. Mr. Brown testified that neither pH nor sulfate can have a significant effect on
drinking water because although they impact the quality of the water, they do not affect
health.
392. Ms. Widlowski acknowledged that the goal of ADEQ’s APP program was to
protect the aquifer, not just downgradient drinking wells. Ms. Widlowski testified that the
APP program was required to protect the aquifer even if no downgradient drinking wells
existed within 100 miles of a permitted project.
3.9.3 Nitrate (appeal issues 60 and 84)
393. Dr. Wilson testified that nitrate can be toxic to pregnant women and infants.
Table 3.1 forecast that after rinsing, 110 mg/l of nitrate would remain as a result of the use
of make-up water that had the same level of nitrate. See SWVP-792 at 77 (based on
ADEQ-1 at 558). The primary MCL and AWQS for nitrate are both 10 mg/l.
394. Dr. Wilson testified that he submitted a comment to ADEQ about the failure
of the Temporary APP to require FCI to reduce the level of nitrate in the groundwater that
its geochemical model predicted. In response to the comment, ADEQ indicated that FCI’s
sealed geochemical model was not accurate as to predicted nitrate contamination:
No ISCR activities or other mining related historical site activities have included the use of nitrate bearing compounds in any form. Nitrate contamination in the UBFU occurs on a regional basis and is assumed to be the result of agricultural practices. Water from the UBFU will not be used as rinse water in the Oxide Unit for the PTF. Nitrate concentrations in the Oxide Unit proposed to be used as rinse water for the PTF, as observed from water quality at M22-O, are generally less than 1.0 mg./L.
SWVP-792 at 78 (quoting ADEQ-10 at 233; emphasis in original).
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395. Dr. Wilson noted that ADEQ’s response was not consistent with FCI’s
application for the Temporary APP for the PTF. Although some e-mails reflect the change
in FCI’s approach to restoration, the Temporary APP had not been amended to reflect the
change and none of the e-mails contained a registered geologist or hydrologist’s seal. Dr.
Wilson opined that if the composition of the make-up water changed, forecast nitrate
concentration may not be the only change to the geochemical model and permitted
restoration activities. Dr. Wilson opined that because the expected concentration in FCI’s
geochemical model was 11 times the AWQS for nitrate, the Temporary APP should have
included a requirement that FCI reduce nitrate levels.
396. Mr. Brown testified that the forecast composition for nitrate of makeup
water in Table 3.1 did not affect the validity of Table 3.1 or FCI’s geochemical model
because it had informed ADEQ orally and in writing that it planned to use a different
source of makeup water.
397. Dr. McNulty testified that nitrate was not in the Poston Butte ore body
because nitrate was water soluble. Dr. McNulty explained that nitrate may show up in
conventionally mined ores because ammonium nitrate is used as an explosive in
conventional mining operations. Dr. McNulty testified that FCI will not generate nitrate at
the PTF.
3.9.4 Change from injection to flushing (appeal issues 71, 73, 74, 76, and 78)
398. Dr. Wilson testified that he uses the term “flushing” to describe the
process of pumping water from the formation, the method of restoration that Mr. Nicholls
testified that FCI would use in the PTF. Dr. Wilson explained that the term “rinsing”
means taking water from another source and moving it through the system, then
pumping water out. Dr. Wilson testified that FCI’s plan for restoration that did not
include injecting any significant amounts of water into the mine block complicated the
analysis of hydraulic control because all of the water for restoration must be pumped
from somewhere else in the formation. Dr. Wilson opined that although rinsing was
more effective than flushing, FCI had not changed the anticipated number of pore
volumes for restoration to reflect changes to the geochemical model in Table 3.1.
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399. Mr. Kline testified that for restoration, there is little difference between
rinsing by injecting water and pumping more water out and flushing by just pumping
water from the formation. Mr. Kline acknowledged that if only pumping were used, more
water may come out of the top of the aquifer and the hydrological balance would be
different than for rinsing.
400. Mr. Brown disagreed that ADEQ issued the Temporary APP based upon
unreasonable assumptions about the time required for closure because cleaner rinse
water would expedite the process of restoration. Mr. Brown testified that as long as the
net extraction remained the same, amounts injected did not matter. See FC-25 at 156
Plate 75-1. Mr. Brown explained that the calculations that he performed were
independent of where the water was coming from, as long as the same quantity of water
was involved. Mr. Brown testified that in his model, water for rinsing during restoration
would come from the mine block. See FC-25 at 78-79 and 88. Mr. Brown
acknowledged that injecting a different amount of water during restoration may affect
flow models.
401. Dr. Wilson noted that contrary to the rinsing flow sheet, injection during
restoration would be only 1 gpm for the neutralizing agent, not the 190 gpm showed on
the rinsing flow sheet. See SWVP-832 at 26. Dr. Wilson did not agree with Mr. Brown
because calculations do not depend solely on where water is coming from. Dr. Wilson
explained that injection creates a more vigorous restoration by creating a pressure
ridge, as opposed to just pumping. Dr. Wilson disagreed that the only difference
between injection and pumping was the direction of the flow of the water because
injection creates a cone of impression that pushes water through the system for a better
and faster restoration.
402. Dr. Wilson acknowledged that ADEQ’s response to public comments
informed Appellants that FCI did not intend to use water from an offsite well to rinse the
mine block:
Using rinse groundwater nitrate concentrations from the UBFU would be the worst-case scenario as predicted by the model. . . . [FCI] proposes to use rinse water (formation water) from the Oxide Unit which contains nitrate concentration generally less than 1.0 ppm. Formation rinse water will be
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drawn into the PTF wells from the Bedrock Oxide Unit surrounding the PTF well field and will not come from the LBFU or UBFU aquifers.
ADEQ-10 at 307 (emphasis in original).
403. Dr. Wilson explained that although § 2.9.2 of the Temporary APP required
FCI to rinse the mine block until the constituents listed in Table 4.1-7 were below AQLs
and AWQS, his main concern was that the Temporary APP did not match ADEQ’s
response to comments. Dr. Wilson opined that if the permit requirement was changed
from rinsing to flushing, the geochemical model and the water balance in the Temporary
APP should reflect the change. Dr. Wilson testified that ADEQ’s and FCI’s witnesses’
testimony about the rinsing flow sheet in the application showed that the nitrate
concentrations after rinsing shown on Table 3.1 did not accurately reflect FCI’s planned
restoration. See SWVP-832 at 26 (based on ADEQ-1 at 398). Dr. Wilson noted that
although ADEQ demanded sealed documents to support FCI’s application, Table 3.1
and the rinsing flow sheet were sealed documents that were demonstrably wrong and
had not been corrected.
404. Ms. Widlowski testified that Mr. Nicholls had indicated in an e-mail that
formation rinsing water would be drawn into the PTF wells from the bedrock oxide unit
surrounding the PTF mine block and that less than 1 gpm of incidental groundwater would
be pumped to constitute a neutralizing solution during the rinsing period. See ADEQ-5 at
169-170. Ms. Widlowski testified that neither she nor anyone else at ADEQ had relied on
Table 3.1 when ADEQ formulated the Temporary APP’s terms.
405. Mr. Nicholls testified that he had discussed rinsing instead of flushing with
ADEQ, but that the distinction related to the commercial permit. Mr. Nicholls testified that
FCI’s prediction that water in the mine block would be restored to AWQS or AQLs within
nine months was not unreasonable based on FCI’s consultant’s calculations and
increased pumping alone. Mr. Nicholls testified that BHP’s restoration had been slowed
by pond capacity because it had to rely on evaporation, but that the SX/EW plant would
allow FCI to extract and recycle solution.
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3.9.5 Use of neutralizing agents (appeal issues 71, 73, 76, and 78)
406. FCI’s application described the rinsing process and the possible use of
neutralizing agents in relevant part as follows:
Restoration will be accomplished by using groundwater to sweep residual ISCR solutions into recovery wells. The groundwater may be pulled from the aquifer surrounding the IRZ or it may be pumped from nearby wells and then injected into the IRZ. Injection may occur with or without neutralizing material such [as] sodium bicarbonate or other non-hazardous neutralizing agents.
ADEQ-1 at 960 (§ 16.2.1.1). The Temporary APP provided that “the permittee . . . will
initiate a mine block rinsing program consisting of the injection of formation water and
neutralization agents.” ADEQ-7 at 24 § 2.9.2.
407. ADEQ’s response to public comments asserted that “[FCI’s] permit
application states that there will be no addition of agents such as neutralizers to
facilitate mine block rinsing.” SWVP-832 at 8 (quoting ADEQ-10 at 100).
408. Mr. Bryan testified that if there was a difference between FCI’s application
and the Temporary APP and ADEQ’s response to comments, the terms of FCI’s
application and the Temporary APP controlled.
409. Mr. Nicholls noted that BHP had not used neutralizing agents, which would
have sped up the restoration process. Mr. Nicholls and Mr. Brown noted that FCI
proposed to accelerate the restoration process by adding neutralizing agents and that
Dr. McNulty’s work was a precursor to a field test. Mr. Nicholls testified that Dr. McNulty
had tested different neutralizing agents and concluded that the best one was sodium
bicarbonate. Mr. Nicholls testified that the possibility that FCI would use sodium
bicarbonate was conveyed to ADEQ, and that ADEQ agreed that FCI should have
operational flexibility to test different agents.
3.9.6 FCI’s failure to formally update the geochemical model and rinsing flow sheet (appeal issues 73, 74, and 76)
410. Mr. Johnson testified that although FCI had not amended its application for
the Temporary APP or submitted a sealed report to replace the Schlumberger technical
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memorandum, FCI had discussed the methods that it intended to use to restore the mine
block with ADEQ staff.
411. Mr. Bolitho noted that unsealed documents were among the deficiencies
identified in his presentation. See SWVP-231 at 16. Mr. Bolitho testified that ADEQ
requires sealed documents from licensed professionals practicing in their specialized
areas of competence such as hydrologists and geologists to make a permitting decision.
Mr. Smit testified that it was within ADEQ’s discretion to allow FCI to change the
restoration process from rinsing to flushing without submitting a new sealed
geochemical model that described the effect of the change.
412. FCI submitted a draft February 2014 In-Situ Recovery of Copper Simulation
prepared by Daniel B. Stephens & Associates, Inc. that summarized the results of a
groundwater flow and geochemical model using updated data about the methods that FCI
planned to use in the PTF. See FC-30. Mr. Johnson testified that FCI intends to identify
the levels of nitrate existing in the mine block, but that sulfate and pH were the only
constituents of concern in the updated geochemical model. Mr. Johnson acknowledged
that FCI had not yet submitted Daniel B. Stephens & Associates, Inc.’s final sealed report
to ADEQ.
413. Mr. Nicholls testified that although FCI decided to use water from the oxide
unit or LBFU in restoration rather than water from a well drilled into the UBFU, Table 3.1
was FCI’s good-faith effort to forecast groundwater composition after rinsing from the best
data available from BHP’s pilot project. Mr. Nicholls testified that the geochemical model
was only a calculator whose results would change as inputs changed. Mr. Nicholls
testified that no ALs or AQLs were chosen based on Table 3.1 and that FCI had
commissioned a new geochemical model from Dr. McNulty based on core samples.
414. Mr. Brown explained that the only alternative to calculations based on
BHP’s data was to collect and to independently sample such data, which is what FCI
proposed to do in the PTF. Mr. Brown testified that FCI relied on BHP’s data in Table
3.1 not to predict what would happen, but to state the maximum contamination under a
worst case scenario. See FC-25 at 88.
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3.9.7 Failure of Temporary APP to require FCI to perform any testing to update its groundwater models as part of closure (appeal issues 28, 72, 73, and 81)
415. Section 2.9.1 of the Temporary APP requires that within 90 days of its
effective date, FCI must submit a closure plan that included among other information, an
“[o]utline of Report contents for PTF Summary Report that incorporates updated
groundwater modeling at the cessation of the pilot test” and a “5 Year Post-Closure
Groundwater Monitoring Report that incorporates updated groundwater modeling.”
ADEQ-7 at 24. The Temporary APP does not require FCI to perform any tests during its
closure operations.
416. Dr. Wilson noted that § 2.9.1 did not require FCI to conduct an aquifer pump
test or any other test at closure. Dr. Wilson quoted the conclusion of BHP’s draft
Hydrogeological Studies For the In-Situ Leach Field Test, in relevant part as follows:
It is suggested that the post-leach tests be conducted. These tests will include pumping tests and tracer tests to determine the changes in hydraulic conductivity and porosity due to leaching. The test results can help to understand the leach processes, such as, the locations of mineral dissolution and precipitation. They can also be used to verify the geochemical modeling which predicts the changes in porosity. Post-leach drilling shall also be conducted to exam[ine] the completeness and the location of mineral dissolution, as well as the excursion of injected solution.
SWVP-792 at 126 (quoting SWVP-596 at 38). Dr. Wilson noted that a pumping test and
a tracer test were both recommended after BHP’s pilot project and that a tracer test was
useful to demonstrate the existence of short circuits. Dr. Wilson recommended that FCI
be required to perform a tracer test both before and after the injection phase of the PTF
because the injection of strong acid will change porosity.
417. Mr. Brown disagreed that the Temporary APP unreasonably failed to
require post-rinsing assessment of aquifer impacts through geophysical logging and
aquifer pump tests, despite the existence of data suggesting that significant changes in
aquifer properties may occur during operations. See FC-25 at 84. Mr. Brown opined
that Appellants’ concern about changes in porosity as a result of leaching was
unfounded because leaching causes the bedrock to plug up, making it harder to get the
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copper out. Mr. Brown testified that any reduction in hydraulic conductivity would not be
a threat to human health or the environment.
418. Mr. Nicholls testified that FCI did not propose any post-leaching tracer
tests in its application. Mr. Nicholls testified that although a tracer test could provide
data that would be relevant to the equivalent porous media assumption in the fate and
transport model, FCI could obtain such information in other ways.
419. Dr. Wilson did not expect short circuits at the PTF to look like the short
circuits at BHP’s pilot project, but testified that a tracer test was needed to find out. Dr.
Wilson expected FCI to gather data, but noted that under the Temporary APP, the
outside world would not see most of FCI’s data.
CONCLUSIONS OF LAW
1 Jurisdiction
1. Because lixiviant consisting of 99.5% water and .5% sulfuric acid that FCI
intends to inject into the aquifer is a pollutant that is a hazardous substance,34 an
individual APP is required for FCI to operate the PTF.35 The Board has jurisdiction over
Appellants’ challenges to ADEQ’s grant of the Temporary APP to FCI.36 The Board must
affirm ADEQ’s decision to grant the Temporary APP to FCI unless, based on the entire
record and applicable law, ADEQ’s decision “[was] arbitrary, unreasonable, unlawful or
based upon a technical judgment that [was] clearly invalid.”37
2 Burden of proof and applicability of APP statutes and regulations
2. Appellants bear the burden to establish that any of the terms in the Temporary
APP are arbitrary, unreasonable, unlawful, or based upon a technical judgment that is
clearly invalid.38 The standard of proof is a preponderance of the evidence,39 that is,
“such proof as convinces the trier of fact that the contention is more probably true than
not.”40 A preponderance of the evidence is “[t]he greater weight of the evidence, not
necessarily established by the greater number of witnesses testifying to a fact but by
34 See A.R.S. § 49-201(29). 35 See A.R.S. § 49-203(A)(4). 36 See A.R.S. §§ 49-241(B)(3) and 49-323(A). 37 A.R.S. § 49-324(C). 38 See A.A.C. R2-19-119(B)(1). 39 See A.A.C. R2-19-119(A); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). 40 MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960).
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evidence that has the most convincing force; superior evidentiary weight that, though not
sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair
and impartial mind to one side of the issue rather than the other.”41
3. APP statutes and regulations do not distinguish between large and small
projects or impose lower standards on projects that will not threaten existing drinking
water sources if the project could affect the aquifer.42 In terms of statutory and regulatory
requirements, the only difference between a Temporary APP for a pilot project and a life-
of-facility APP for a full-scale commercial mine is that the former has a fixed temporal
limit. Therefore, the Temporary APP for the PTF must meet the same statutory and
regulatory requirements as a life-of-facility APP for a full-scale commercial mine.
3 Appeal issues
3.1 The Temporary APP’s compliance with A.A.C. R18-9-A210
3.1.1 The initial one-year term and the permissive one-time renewal period
4. A.A.C. R18-9-A210(E) provides that a temporary APP “expires after one year
unless it is renewed. [ADEQ] may renew a [temporary APP] no more than one time.”
As noted above, the Temporary APP provided that FCI “proposes to construct and
operate the PTF over a two-year period, estimated to include an approximate 14 month
leaching phase and a 9 month mine block rinsing phase.”43
5. Although it appears that ADEQ committed to renew the Temporary APP, FCI
may not complete its first year of operation, like BHP. If FCI fails to comply with the
terms of the Temporary APP or if ADEQ becomes aware of significant problems at the
PTF or violations of the Temporary APP, ADEQ may deny FCI’s application to renew
the Temporary APP.
6. If FCI fails to complete restoration at the PTF under the one to two-year term
of the Temporary APP, its obligations will roll over into the life-of-facility APP. ADEQ
may deny FCI’s renewed application for a significant amendment to the life-of-facility
41 BLACK’S LAW DICTIONARY at 1220 (8th ed. 1999). 42 See A.R.S. §§ 49-203(A)(4), 49-241(A). 43 ADEQ-7 at 2 § 2.1.
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APP for the full-scale commercial mine if FCI significantly underestimated the time
required for restoration under the Temporary APP.
7. The ALJ and the Board must defer to ADEQ’s reasonable interpretation of its
own administrative regulations.44 Even though FCI estimated that the PTF will take at
least 23 months and ADEQ’s witnesses acknowledged that restoration of the PTF may
take longer than two years, Appellants did not establish that under A.A.C. R18-9-A210(E),
ADEQ’s issuance of the Temporary APP to FCI was arbitrary, unreasonable, unlawful, or
based upon a technical judgment that was clearly invalid.
3.1.2 Proof of concept under A.A.C. R18-9-A210
8. A.A.C. R18-9-A210(A)(1) allows a person to apply for a Temporary APP for “[a]
pilot project to develop data for an [APP] application for the full-scale project . . . .” “‘Pilot
project’ means a short-term, limited-scale test designed to gain information regarding
site conditions, project feasibility, or application of a new technology.”45 ADEQ’s
witnesses all testified that they determined that the PTF was a pilot project that would
develop at least some data for the application for the significant amendment to the life-
of-facility APP for the full-scale commercial mine.
9. A.A.C. R18-9-A210(A)(1) does not require that a pilot project resolve all
uncertainties about or replicate to any specific degree the planned operation or concept of
the full-scale mine. A.A.C. R18-9-A210 also does not provide any assurance to a
permittee that it will obtain an APP for the full-scale project. FCI bears the risk that the
PTF will not generate and that FCI will not otherwise be able to obtain the data that it
needs to support the application for a significant amendment to the life-of-facility APP for
the full-scale commercial mine.
10. Even though the PTF differs in some respects from the full-scale commercial
mine and the PTF may not address all the issues set forth in ADEQ’s request for
information on the significant amendment, Appellants did not establish that under A.A.C.
R18-9-A210(A)(1), ADEQ’s issuance of the Temporary APP to FCI was arbitrary,
unreasonable, unlawful, or based upon a technical judgment that was clearly invalid.
44 See Stant v. City of Maricopa Employee Merit Board, 234 Ariz. 196, 202, 319 P.3d 1002, 1008 (App. 2014). 45 A.A.C. R18-9-101(30).
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3.2 FCI’s financial assurance mechanism
11. A.A.C. R18-9-A203(B)(3) requires FCI to provide a financial assurance
mechanism to cover closure and post-closure costs, not construction, operation, or
maintenance costs.46 Mr. Hong credibly testified that FCI’s bond met regulatory
requirements.
12. Appellants argued in their post-hearing memorandum that FCI’s bond’s
cancellation provisions rendered it invalid. However, A.A.C. R18-9-A203(E) provides that
“[a] permittee may substitute one financial assurance mechanism for another if the
substitution is approved by the Director . . . .”
13. Appellants did not establish that under A.A.C. R18-9-A203(B)(3), ADEQ’s
issuance of the Temporary APP was arbitrary, unreasonable, unlawful, or based upon a
technical judgment that was clearly invalid.
3.3 Validity of statutes and BADCT provisions that allow pollutants to be injected directly into an aquifer
14. A.R.S. § 49-243.01(A) authorized ADEQ to adopt the BADCT manual. A.R.S.
§ 49-243.01(B) provides that by incorporating the presumptive controls under BADCT for
the class of facilities, the permitted facility will be deemed to have been designed,
constructed, and operated to ensure the greatest degree of discharge reduction
achievable. Because the LBFU is the source of Johnson’s and the Town’s drinking water,
the requirement in § 2.3.1 of the Temporary APP that “[i]n-situ solutions shall be injected
and contained within the oxide unit” may have been included to comply with BADCT §
3.4.5.3.1’s prohibition of new deep injection wells that allow migration of fluids into or
between underground sources of drinking water.
15. A.R.S. § 49-241(B)(3) allows ADEQ to permit the injection of pollutants into
the aquifer, at least where the injection is required to be contained in a unit that is not a
source of drinking water. Therefore, Appellants did not establish that under A.R.S. §§ 49-
241(B)(3) and 49-243.01(A), ADEQ’s issuance of the Temporary APP to permit injection
of solution into the oxide unit of the aquifer was arbitrary, unreasonable, unlawful, or
based upon a technical judgment that was clearly invalid.
46 A.A.C. R18-9-A201(B)(5) requires an individual permit application to include “[c]ost estimates for facility construction, operation, maintenance, closure and post-closure . . . .” (Emphasis added.)
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3.4 ADEQ’s alleged reliance on an as-yet-unissued USEPA UIC permit
16. Although some witnesses testified that certain electric conductivity and other
monitoring information may be required by the UIC permit and would be provided to
ADEQ under the Temporary APP, no witnesses testified that ADEQ intends to rely on any
information that may be required by the as-yet-unissued USEPA UIC permit to fulfill any
requirements of the Temporary APP or applicable statutes or regulations.47 The
Temporary APP for the stand-alone PTF must comply with APP statutes, regulations, and
BADCT and must succeed or fail on its own terms without resort to the requirements of
any concomitant UIC permit.
17. Therefore, Appellants did not establish that ADEQ relied on any part of an as-
yet-unissued USEPA UIC permit to meet any specific requirements of the Temporary APP
or APP statutes or regulations. Appellants therefore did not establish that based on this
alleged reliance on an unissued permit, ADEQ’s issuance of the Temporary APP was
arbitrary, unreasonable, unlawful, or based upon a technical judgment that was clearly
invalid.
3.5 The Temporary APP’s requirements for sampling groundwater
3.5.1 The single round of groundwater sampling for the wells in the PTF well field
18. No statute or regulation requires any groundwater sampling in the PMA. No
statute or regulation requires that FCI leave the mine block in the same ambient condition
that it was in before FCI started injection operations at the PTF.
19. Therefore, Appellants did not establish that the Temporary APP’s requirement
of a single round of groundwater sampling for the wells in the PTF well field was arbitrary,
unreasonable, unlawful, or based upon a technical judgment that was clearly invalid.
47 ADEQ’s and FCI’s witnesses did not dispute that if Arizona APP statutes or regulations require a specific protection, the Temporary APP must contain a term that provides such protection. Therefore, specific statutory, regulatory, or technical requirements are addressed below based on evidence that was submitted on Appellants’ appeal issues that involved those requirements.
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3.5.2 Sampling new POC wells after injection has begun
20. A.A.C. R18-9-A202(A)(6) provides that an applicant for an individual APP
must include POC wells located pursuant to A.R.S. § 49-244 and that the applicant must
sample the POC wells to establish ambient water quality, in relevant part as follows:
An applicant shall demonstrate that: a. The facility will not cause or contribute to a violation of an
[AWQS] at the proposed [POC]; or b. If an [AWQS] for a pollutant is exceeded in an aquifer at the
time of permit issuance, no additional degradation of the aquifer relative to that pollutant and determined at the proposed [POC] will occur as a result of the discharge from the proposed facility. In this case, the applicant shall submit an Ambient Groundwater Monitoring Report that includes:
i. Data from eight or more rounds of ambient groundwater
samples collected to represent groundwater quality at the proposed [POCs], and
ii. An AQL proposal for each pollutant that exceeds an
[AWQS] . . . .
Based on the average rate of flow, any pollution from the PTF will not reach the POC
wells for years, if not decades. Therefore, although the Temporary APP allows FCI to
perform sampling after it has begun injection operations, the results of the eight rounds of
sampling will reflect ambient conditions.
21. The eight rounds of sampling that the Temporary APP requires at the newly
constructed POC wells comply with A.A.C. R18-9-A202(A)(6). Therefore, Appellants did
not establish that the Temporary APP’s requirement that FCI perform eight rounds of
groundwater sampling at the currently permitted new POC wells within 60 days of the
effective date of the permit was arbitrary, unreasonable, unlawful, or based upon a
technical judgment that was clearly invalid.
3.6 ADEQ’s failure to consider BHP’s reports from its 1997-1998 pilot project
22. A.A.C. R18-9-A202(A)(4) required FCI to include as an attachment to its
application for the Temporary APP the following:
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A summary of the known past facility discharge activities and the proposed facility discharge activities indicating all of the following: a. The chemical, biological, and physical characteristics of the
discharge; b. The rate, volume, and frequency of the discharge for each
facility; and c. The location of the discharge and a map outlining the
pollutant management area described in A.R.S. § 49-244(1) . . . .
FCI’s application included Attachment 10 that summarized such data that was still
available from BHP’s 1997-1998 pilot project. According to FCI, it did not attach or
mention draft reports from credentialed professionals because all of the data summarized
in the reports was no longer available due to BHP’s hasty termination of the pilot project.48
23. Neither A.A.C. R18-9-A202(A)(4) nor any statute requires that summaries of
past discharge activities must be based solely on extant data, rather than draft reports that
state conclusions based on data that has been lost. The draft BHP reports were prepared
by persons who did not testify at the hearing, except for Mr. Kline. The data that FCI
attached to its application was gathered by technicians who also did not testify or verify
the data’s authenticity. Both the draft reports and the data are hearsay.49 Hearsay may
be admitted and considered in an administrative decision50 if it is the kind of evidence
upon which reasonable persons would rely in serious matters.51
24. The draft BHP reports are the kind of evidence upon which reasonable
persons would rely in serious matters. ADEQ did not have BHP’s draft reports when it
issued the Temporary APP because FCI had not provided them with its application. Now
that the draft reports are available, the ALJ and the Board may consider all available
48 Incidentally, the data that was still available supported FCI’s equivalent porous media assumption in groundwater modeling and the sufficiency of BHP’s permit requirements to maintain hydraulic control and to prevent migration of fluid. 49 See Ariz. R. Evid. 801(c) (“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). 50 See A.R.S. § 41-1092.07(F)(1). 51 See Plowman v. Arizona State Liquor Board, 152 Ariz. 331, 337, 732 P.2d 222, 228 (App. 1986) (citing Begay v. Arizona Department of Economic Security, 128 Ariz. 407, 626 P.2d 137 (App. 1981)).
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evidence of past discharge activities without excluding any potentially relevant evidence
when they determine whether the Temporary APP’s terms provide adequate protection to
the aquifer.52
25. Although neither the ALJ, the Board, nor ADEQ should assume liability for the
PTF by dictating to FCI which groundwater models it should use or the locations of the
PMA, POC wells, or monitoring wells, ADEQ is responsible for ensuring that the terms in
the Temporary APP comply with all statutory and regulatory requirements and adequately
protect the aquifer. Therefore, the ALJ concludes that BHP’s draft reports and the reports’
conclusions about hydraulic control and migration of fluid during the 1997-1998 pilot
project should be considered to gauge whether the terms that ADEQ approved in the
Temporary APP were arbitrary, unreasonable, unlawful, or based upon a technical
judgment that was clearly invalid.
3.7 Possible loss of hydraulic control and migration of fluid
3.7.1 FCI’s assumption of equivalent porous media in its groundwater flow and fate and transport models
26. FCI only provided modeling to ADEQ to support the DIA in its application for
the Temporary APP, not to support the locations of POC wells or the adequacy of
monitoring. Although Mr. Bolitho reviewed FCI’s models, including the equivalent porous
media assumption, his review is tempered by his disclaimers that he is not a modeler and
did not verify the data or assumptions that FCI used in its models. FCI did not provide
its modeling files to ADEQ, but only to USEPA. Golder Associates’ report that FCI
attached to its application to support its assumption of equivalent porous media was
issued in 1996, a year before BHP’s pilot project in 1997-1998. BHP’s draft reports
raise serious questions about the appropriateness of the equivalent porous media
assumption in FCI’s fate and transport model.
27. Nonetheless, “where the views of the [agency] and the petitioner indicate
bona fide differences of expert opinion or judgment on a technical issue, the Board
52 See A.A.C. R2-17-120 (the Water Quality Appeals Board may consider evidence that was not previously considered by ADEQ); see also Defenders of Wildlife v. Hull, 199 Ariz. 411, 425 ¶ 52, 18 P.3d 722, 736 (App. 2001) (“[A]ll evidence should be examined during navigability determinations and no relevant facts should be excluded . . . .”).
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typically will defer to the [agency].”53 Although Appellants have not established that
ADEQ’s acceptance of FCI’s assumption of equivalent porous media in its groundwater
flow and fate and transport models was arbitrary, unreasonable, unlawful, or based upon
a technical judgment that was clearly invalid, FCI should be required to monitor for any
escape of fluid that would demonstrate the shortcomings of its models.
3.7.2 Maintaining hydraulic control by maintaining a 1-foot inward hydraulic gradient and pumping more fluid than is injected
28. FCI’s application and the Temporary APP define hydraulic control exclusively
in terms of the BADCT control mechanism of creating a cone of depression by pumping
more fluid than is injected and maintaining a 1-foot inward hydraulic gradient. BHP’s
commercial permit contained the same BADCT mechanisms for hydraulic control. BHP
maintained hydraulic control as defined by its permit during the operation of the pilot
project.
29. Sections 2.6.2.5 and 2.7.4.4(1), (2), (3), and (8) of the Temporary APP
require FCI to monitor and to report to ADEQ the amounts of fluid injected and recovered
and the inward gradient. In light of these requirements, Appellants did not establish that
the Temporary APP’s requirements for maintaining and monitoring hydraulic control, as
defined by the Temporary APP, were arbitrary, unreasonable, unlawful, or based upon a
technical judgment that was clearly invalid.
3.7.3 The Temporary APP’s requirements that FCI monitor possible loss of fluid
3.7.3.1 Limited monitoring in the PTF well field
30. ADEQ has a duty to “[p]romote and coordinate the protection and
enhancement of the quality of water resources consistent with the environmental policy
of this state” and to “[p]rovide for the prevention and abatement of all water . . . pollution
. . . in accordance with” statutes relating to water quality control, including APP statutes
and regulations.54 A.R.S. § 49-243(B)(1) requires that the Temporary APP ensure the
greatest degree of discharge reduction achievable through application of BADCT.
BADCT prescribes mechanisms to control fluids used in ISL mining and proscribes 53 In re Shell Offshore, 2007 WL 3138040 at *29.
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construction of any new deep injection wells that allow migration of fluids into or between
underground sources of drinking water.55 Although “[m]onitoring is generally not regarded
as part of the BADCT design, unless it is performed as a specific feedback mechanism to
adjust the design or operational aspects of the facility,”56 BADCT includes a warning that
“[p]otential for short circuiting of anticipated solution migration pathways due to fractures
and solution/rock chemical reactions over time is a potential concern that should be
assessed for in-situ mining in most instances.”57
31. ADEQ’s and FCI’s witnesses asserted that if the solution migrated into the
LBFU, it would be pulled back by the cone of depression or react with calcium to become
solid gypsum. But ADEQ’s and FCI’s witnesses acknowledged that migration of fluid into
the LBFU would violate the requirement in § 2.3.1 of the Temporary APP that FCI inject
and maintain in-situ solutions in the oxide zone.
32. Similarly, ADEQ’s and FCI’s witnesses asserted that MW-01 and the POC
wells will eventually detect solution that migrates vertically and/or horizontally from the
PTF well field. But ADEQ’s and FCI’s witnesses acknowledged that years could pass
before such detection occurs and that by that time, PTF operations will have ended.
33. Therefore, if ADEQ did not require meaningful monitoring because it assumed
that FCI’s net recovery of fluid and maintenance of a 1-foot inward hydraulic gradient were
sufficient to prevent vertical and/or horizontal migration of fluid, the Temporary APP would
violate A.R.S. § 49-243(B)(1) and BADCT by failing to ensure that the Temporary APP’s
BADCT hydraulic control mechanisms effectively achieved the greatest degree of
discharge reduction achievable.
3.7.3.2 Electric conductivity and pH
3.7.3.2.1 Electric conductivity
34. Section 2.7.4.4(4) of the Temporary APP requires FCI to submit quarterly
reports that included “[a] graphical representation of electric conductivity readings from the
injection and observation wells.” The current plans for the injection and recovery wells
54 A.R.S. § 49-104(A)(7) and (A)(10). 55 BADCT § 3.4.5.3.1, SWVP-156 at 164. 56 BADCT Key Concept, SWVP-156 at 17. 57 BADCT § 3.4.4.2, SWVP-156 at 159.
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provide that wells will not have sensors in the exclusion zone or the LBFU, where the
Temporary APP prohibits migration of fluid.
35. Because the Temporary APP does not require that readings be taken or
reported from any aquifer unit or elevation, even if sensors indicate that fluid is migrating
through the exclusion zone toward the LBFU, the Temporary APP does not require FCI to
report the migration or to take any contingency action. Without required monitoring and
reporting of fluid migration into the LBFU in the well field, the Temporary APP’s
requirement that FCI contain injected in-situ solutions within the oxide zone does not
protect the LBFU and the aquifer.
36. In light of acknowledged vertical migration of in-situ solution into the LBFU at
BHP’s pilot project, Appellants established that the Temporary APP does not require
meaningful monitoring of possible vertical migration through electric conductivity sensors
or a hydrosleeve in the LBFU in the PTF well field or require any contingency action if
such migration is identified. Therefore, Appellants established that ADEQ’s issuance of
the Temporary APP without requiring meaningful monitoring of vertical excursions of fluid
into the LBFU was arbitrary,58 unreasonable,59 and based upon a technical judgment was
clearly invalid because it did not comply with A.R.S. § 49-243(B)(1) and BADCT § 3.4.4.2.
3.7.3.2.2 pH
37. Section 2.7.4.4(7) of the Temporary APP requires FCI to provide to ADEQ
“[g]raphical time versus concentration plots of groundwater elevations, field pH, sulfate
and [TDSs] since the inception of monitoring at each POC well, and any parameter
which exceeded an applicable AL or AQL in the past three sampling events at each
POC well.”
38. FCI’s witnesses credibly testified that pH is a poor parameter because acid
is consumed, pH is a lagging indicator, and accurate pH readings require frequent
calibration of equipment. FCI’s witnesses credibly testified that TDSs, electric 58 See, e.g., Maricopa County Sheriff’s Office v. Maricopa County Employee Merit System Commission, 211 Ariz. 219, 223, 119 P.2d 1022, 1026 (2005) (“In determining whether an administrative agency has abused its discretion by acting in an arbitrary and capricious manner, we review the record to determine whether there has been ‘unreasoning action, without consideration and in disregard for facts and circumstances . . . .”). 59 See, e.g., Riley v. Boxa, 542 N.W.2d 519, 523 (Iowa 1996) (An action is unreasonable if it is “against reason and evidence as to which there is no room for difference of opinion among reasonable minds.”).
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conductivity, and sulfate were better indicators of contamination. Therefore, Appellants
did not establish that the Temporary APP’s failure to require monitoring of pH in the PTF
well field was arbitrary, unreasonable, unlawful, or based upon a technical judgment that
was clearly invalid.
3.7.3.3 Monitoring well MW-01
39. ADEQ’s and FCI’s witnesses were not concerned about possible vertical or
horizontal migration of solution from the PTF well field because in their collective opinion,
the cone of depression caused by pumping more fluid than was injected and the inward
hydraulic gradient would prevent such migration, but if such migration occurred, the
solution would disperse and eventually be detected at MW-01 or the POC wells.
Although FCI is required to use MW-01 to monitor for pH, sulfate and TDSs, if solution
reaches MW-01, it would not violate the Temporary APP or trigger any contingency action
because MW-01 will be in the PMA and, therefore, according to ADEQ’s witnesses, is not
a candidate to be a POC well. MW-01 is the only monitoring well between the PTF well
field and the POC wells several hundred feet away.
40. Mr. Kline acknowledged that fluid migrated vertically into the LBFU during
BHP’s pilot project. Appellants established that during BHP’s pilot project, fluid may have
migrated horizontally, short circuits were reported, and some data caused BHP to be
concerned about the propriety of its equivalent porous media assumption. Appellants
established spatial bias in FCI’s groundwater flow model in the PTF well field. All of this
evidence raises a substantial possibility that despite FCI’s maintenance of hydraulic
control as defined by the Temporary APP, vertical or horizontal migration of in-situ
solution may occur during the two-year term of the PTF.
41. A.R.S. § 49-243(K)(1) allows ADEQ to require monitoring that is necessary to
ensure compliance with APP statutes.60 As noted above, in light of the evidence of
vertical and possible horizontal migrations of fluid during BHP’s pilot project, ADEQ should
have heeded the warning in BADCT § 3.4.4.2 and required meaningful monitoring of
potential short circuits in the Temporary APP. In light of the uncertainties about whether
the oxide zone is equivalent porous media, a single monitoring well between the PTF well
60 See A.R.S. Title 49, Chapter 2, article 3, A.R.S. §§ 49-241 to 49-252.
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field and the POC wells does not adequately monitor whether FCI’s maintenance of
hydraulic control, as defined by the Temporary APP, will effectively prevent migration of
fluid. Therefore, ADEQ’s issuance of the Temporary APP that required only a single
monitoring well downgradient to detect vertical and horizontal migration of in-situ solution
during the two-year term of the PTF was unreasonable and based on a technical
judgment that was clearly invalid.
3.7.3.4 Acid balance
42. Appellants’ desire that the Temporary APP should require FCI to provide an
acid balance during PTF operations is not unreasonable. ADEQ established that it had
taken the requirement for a mass balance calculation for sulfuric acid out of the
Temporary APP because after discussions with FCI, ADEQ reasonably determined that
the calculation could better be performed at the end of PTF operations. However, the
Temporary APP does not require FCI to provide an acid balance during closure and
restoration.
43. FCI’s witnesses credibly testified that because acid is considered a valuable
resource, FCI will keep records of an acid balance for operational purposes. FCI’s
witnesses also credibly testified that because acid is consumed by ISL mining or reacts
with calcium to form gypsum, it is impossible to account for 100% of the injected acid at
the end of PTF operations, even if no acid is lost to the aquifer.
44. Although FCI will keep a record of acid balance for operational purposes, an
acid balance will have limited value for environmental regulation because decades may
pass before FCI will be able to account for most of the acid. “Even when ‘two inconsistent
factual conclusions could be supported by the record, then there is substantial evidence to
support an administrative decision that elects either conclusion.’”61 Therefore, Appellants
did not establish that the Temporary APP’s failure to require FCI to provide an acid
balance was arbitrary, unreasonable, unlawful, or based upon a technical judgment that
was clearly invalid.
61 Ontiveros v. Arizona Dep’t of Transp., 151 Ariz. 542, 543, 729 P.2d 346, 347 (App. 1986) (quoting Webster v. State Bd. of Regents, 123 Ariz. 363, 365-366, 599 P.2d 816, 818-19 (App. 1979)).
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3.7.3.5 The 40-foot exclusion zone
45. Appellants established that the exclusion zone effectively was only the 40 feet
that the Temporary APP required, not the 72 feet that some of ADEQ’s and FCI’s
witnesses claimed. Although the 40-foot exclusion zone appears to have been a
compromise between operational requirements and environmental protection, Appellants
did not submit any evidence that the 40-foot exclusion zone did not provide adequate
protection to the LBFU and the aquifer. BHP’s permit also included a 40-foot exclusion
zone and it appears to be ADEQ’s usual practice.
46. “[W]hen viewing the sufficiency of the evidence, courts should show a certain
degree of deference to the judgment of the agency based upon the accumulated
experience and expertise of its members.”62 Therefore, Appellants did not establish that
the Temporary APP’s requirement for a 40-foot exclusion zone was arbitrary,
unreasonable, unlawful, or based upon a technical judgment that was clearly invalid.
3.8 The designation of the PMA and the location of the POC wells
47. In Arizona, because administrative agencies’ interpretations of the statutes
that they are charged with implementing are entitled to deference,63 ambiguities in
statutes must be resolved according to the implementing agency’s interpretation.64
ADEQ’s witnesses testified that the agency’s long-standing practice is to liberally construe
statutory and regulatory requirements, to allow permittees operational flexibility, and to
adopt the PMA and POC locations proposed by an applicant as long as they are not too
“far-fetched.” But no evidence indicates that ADEQ has ever permitted a deep well ISCR
mine involving injection into an aquifer other than BHP’s commercial project and FCI’s
PTF, and ADEQ repeatedly emphasized that BHP’s project was different from FCI’s
smaller, stand-alone project.
48. A.R.S. § 49-244 provides in relevant part as follows:
62 In re Wickman, 138 Ariz. 337, 341, 674 P.2d 891, 895 (App. 1983); see also A.R.S. § 41-1092.07(F)(3) (“[N]otice may be taken of generally recognized technical or scientific facts within the agency’s specialized knowledge.”). 63 See, e.g., Bridgestone Retail Tire Operations v. Industrial Commission, 227 Ariz. 453, 456 ¶ 12, 258 P.3d 271, 274 (2011). 64 See, e.g., Eaton v. Arizona Health Care Cost Containment System, 206 Ariz. 430, 434 ¶ 16, 79 P.3d 1044, 1048 (2003).
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The [POC] is the point at which compliance with [AWQS] shall be determined. . . . The [POC] shall be determined as follows: 1. Except as provided in paragraph 2, for a pollutant that is a hazardous substance the [POC] is the limit of the [PMA]. The [PMA] is the limit projected in the horizontal plane of the area on which pollutants are or will be placed. The [PMA] includes horizontal space taken up by any liner, dike or other barrier designed to contain pollutants in the facility. If the facility contains more than one discharging activity, the [PMA] is described by an imaginary line circumscribing the several discharging activities. 2. A [POC] for hazardous substances other than that identified in paragraph 1 may be approved by the director if the facility owner or operator can demonstrate . . . : . . . . (b) The alternative [POC] will allow installation and operation of the monitoring facilities that are substantially less costly. Such a request by a facility owner or operator under this paragraph must be supported by an analysis of the volume and characteristics of the pollutants that may be discharged . . . . In no event shall an alternative [POC] be further from the boundary specified in paragraph 1 than is necessary for purposes of this paragraph, subdivisions (a) and (b), and in no event shall it be so located as to result in an increased threat to an existing or reasonably foreseeable drinking water source. In addition an alternate [POC] for a hazardous substance pursuant to this subdivision shall never be further downgradient than any of the following: (i) The property boundary. (ii) Any point of an existing or reasonably foreseeable
future drinking water source. (iii) Seven hundred fifty feet from the edge of the [PMA].
(Emphasis added.)
3.8.1 The area where pollutants are or will be placed
49. FCI’s PTF that ADEQ permitted in individual Temporary APP No. P-106360 is
located entirely within the boundaries of the life-of-facility commercial mine that ADEQ
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permitted BHP to operate in APP No. P-101704, which FCI acquired and applied to
significantly amend. A.A.C. R18-9-A302 provides as follows:
If a facility operating under a general permit is located within a larger [PMA] established under an individual permit issued to the same person, the [POC] is the applicable [POC] established in the individual permit.
Because Temporary APP No. P-106360 is an individual permit, not a general permit,
A.A.C. R18-9-A302 does not authorize FCI to use for the smaller PTF the POC wells
permitted in APP No. P-101704 for the larger commercial mine. FCI elected to apply for a
Temporary APP for the stand-alone PTF, instead of responding to ADEQ’s notice of
substantial deficiencies in its application for the significant amendment to APP No. P-
101704 for the larger two-stage commercial mine. Temporary APP No. P-106360 cannot
authorize FCI to use the same POC wells as the commercial APP unless standing alone,
the wells meet statutory requirements for the PTF.
50. Although courts defer to agencies on technical matters within the scope of
the agency’s authority and expertise, that deference “is not to be a device that
emasculates the significance of . . . review.”65 An agency may not disregard clear
statutory directives or legislative intent.66 A.R.S. § 49-244(1) is not ambiguous: the
PMA “is the limit projected in the horizontal plane of the area on which pollutants are or
will be placed,” or for the PTF, where the lixiviant will be injected and recovered.67 FCI’s
applications for the Temporary APP and for the UIC permit made clear that lixiviant
would be placed in the IRZ and was not expected to migrate more than one or two well
spacings to the northwest of the PTF well field. All of FCI’s witnesses agreed with this
interpretation of the unequivocal statements in FCI’s applications.
3.8.2 The 1,000 or 1,600-foot cone of depression as a BADCT control mechanism to designate the PMA
65 Securities Indus. Ass’n v. Board of Governors, 468 U.S. 137, 143-43 (1984) (internal quotations omitted). 66 See, e.g., Cochise County v. Arizona Health Care Cost Containment System, 170 Ariz. 443, 445, 825 P.2d 968, 970 (App. 1991). 67 See, e.g., Ariz. State Board of Regents v. Ariz. State Personnel Bd., 195 Ariz. 173, 175, 985 P.2d 1032, 1034 (1999) (“[I]f an agency rule conflicts with a statute, the rule must yield.”); Schwartz v. Superior Court in and for Cnty. of Maricopa, 186 Ariz. 617, 619, 925 P.2d 1068, 1070 (App. 1996) (“State administrative agencies have no inherent powers; their powers are limited to those granted by statute.”); Cochise Cnty. v. Ariz. Health Care Cost Containment Sys., 170 Ariz. 443, 445, 825 P.2d 968, 970 (App. 1991) (“The scope of an agency’s power is measured by statute and may not be expanded by agency fiat.”).
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51. FCI’s witnesses testified that a substantial cone of depression will function
as a “liner, dike, or other barrier” to justify the 200-acre PMA for the 2.2-acre PTF well
field. Mr. Brown acknowledged that he did not consider the cone of depression as a
barrier that justified the PMA until the hearing, after he had prepared his expert report.
To calculate such a large cone of depression, Mr. Johnson, Mr. Nicholls, and Mr. Brown
all assumed that FCI would continuously operate the PTF at the limit of the ALs for
pumping and injection, or at least that it would steadily maintain a 60 gpm net recovery.
52. A fundamental rule of statutory construction requires that every word or
term in a statute be given meaning so that construction of certain terms in a statute
does not render any of its other terms superfluous.68 A barrier consisting of a 1,600-foot
cone of depression to justify a 200-acre PMA for a 2.2-acre PTF well field would render
superfluous the definition in A.R.S. § 49-244(1) that “[t]he [PMA] is the limit projected in
the horizontal plane of the area on which pollutants are or will be placed.” A continuous
60 gpm net recovery is not an enforceable term in the Temporary APP.
53. “[A] statute should be explained in conjunction with other statutes to the end
that they may be harmonious and consistent; . . . if statutes relate to the same subject
and are thus in pari materia, they should be construed together with other related
statutes as though they constituted one law.”69 A.R.S. § 49-243(B)(1) provides that
ADEQ shall issue an individual APP after an applicant demonstrates, among other things,
the following:
That the facility will be so designed, constructed and operated as to ensure the greatest degree of discharge reduction achievable through application of [BADCT], processes, operating methods or other alternatives, including, where
68 See, e.g., State v. Hoggatt, 199 Ariz. 440, 443 ¶ 10, 18 P.3d 1239, 1242 (App. 2001). 69 Pima County by City of Tucson v. Maya Const. Co., 158 Ariz. 151, 155, 761 P.2d 1055, 1059 (1988).
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practicable, a technology permitting no discharge of pollutants. . . .
(Emphasis added.)70 Adopting the PMA in FCI’s application would allow it to place
pollutants over a 200-acre PMA, even though FCI acknowledged in its application and at
the hearing that lixiviant would only be placed in the IRZ and was not expected to
migrate more than one or two well spacings to the northwest of the 2.2-acre PTF well
field. The expansion of the statutory definition of PMA to encompass a large cone of
depression is inconsistent with the discharge reduction requirements of A.R.S. § 49-
243(B)(1).
54. A.A.C. R18-9-A202(A)(5) required FCI to attach to its application for the
individual Temporary APP certain specific information about the BADCT control
mechanisms that it intended to use in the PTF:
A description of the BADCT employed in the facility, including: a. A statement of the technology, processes, operating
methods, or other alternatives proposed to meet the requirements of A.R.S. § 49-243(B) . . . . The statement shall describe: i. The alternative discharge control measures considered, ii. The technical and economic advantages and
disadvantages of each alternative, and iii. The justification for selection or rejection of each
alternative . . . .
b. An evaluation of each alternative discharge control technology relative to the amount of discharge reduction achievable, site-specific hydrologic and geologic characteristics, other environmental impacts, and water conservation or augmentation;
c. For a new facility, an industry-wide evaluation of the
economic impact of implementation of each alternative discharge control technology;
70 See also BADCT Selection Process Overview, SWVP-156 at 16 (“To achieve BADCT, mining facility owners and operators should use demonstrated discharge control elements utilized on an industry wide basis to limit or, where practicable, eliminate discharge to aquifers.”).
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d. For an existing facility, a statement reflecting the
consideration of factors listed in A.R.S. § 49-243(B)(1)(a) through (h) . . . .
In its application, FCI did not commit to operating the PTF with any specific net rate of
recovery or state that any specific cone of depression would be a BADCT control
mechanism under A.R.S. § 49-243(B)(1) and A.A.C. R18-9-A202(A)(5).
55. Therefore, Appellants established through FCI’s applications for the
Temporary APP and UIC permit that FCI’s witnesses’ testimony that a 1,600 or 1,000-foot
cone of depression justified the PMA was a post hoc rationalization for the PMA that was
first asserted at the hearing, not a permitted control mechanism under BADCT.71
3.8.3 An imaginary line circumscribing several discharging facilities
56. FCI’s witnesses also testified that because the PTF included an impoundment
pond, pipeline corridor, beneficiation pond, and underground mine workings, the PMA was
formed by an imaginary line circumscribing the several discharging facilities under A.R.S.
§ 49-244(1). Although FCI was required to monitor the underground mine workings for
pollutants that might escape from the well field, the workings are not included among
discharging activities in the Temporary APP. No evidence indicated that FCI would
generate or place pollutants in the mine workings.
57. Although Title 49 does not define the word, “circumscribing,” according to the
dictionary, in the vernacular, “circumscribe” may mean “[t]o draw a line around; encircle”
or, in geometry, “[t]o enclose . . . within a configuration of lines, curves, or surfaces so that
every vertex of the enclosed object is incident on the enclosing configuration.”72 “‘[W]here
the evil sought to be prevented is apparent, a reasonable construction of the language
employed is justified, and uncertainty can frequently be removed by resort to the context,
instead of attempting to construe the words by themselves.’”73 Construing the word
71 See, e.g., American Textile Mfrs. v. Donovan, 452 U.S. 490, 539 (1981) (“[P]ost hoc rationalizations of the agency or the parties to this litigation cannot serve as a sufficient predicate for agency action.”); Bowen v. Georgetown Univ. Hosp., Humane Soc’y of the United States v. Locke, 626 F.3d 1040, 1049-1051 (9th Cir. 2010) (“We cannot gloss over the absence of a cogent explanation by the agency by relying on the post hoc rationalizations offered by defendants in their appellate briefs.”). 72 American Heritage Dictionary of the English Language at 244 (1973). 73 State v. Sanner Contracting Co., 109 Ariz. 522, 524-25, 514 P.2d 443, 445-46 (1973) (quoting State v. Lebow, 128 Kan. 715, 719-20, 280 P. 773, 776 (1929)).
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“circumscribing” in A.R.S. § 49-244(1) to expand the size of the PMA to nearly 100 times
the size of “[t]he area on which pollutants are or will be placed” defeats A.R.S. § 49-
243(B)(1)’s requirement that FCI ensure “the greatest discharge reduction achievable”
in operating the PTF.
3.8.4 Substantially less costly alternative POC wells
58. A.R.S. § 49-244(1) requires POCs to be located at the limit of the PMA,
unless FCI establishes that an alternative POC will be substantially less costly under
A.R.S. § 49-244(2). FCI established at the hearing that using existing POC wells left over
from BHP’s commercial mine will be substantially less costly than building new POC wells
at the limit of the PMA for the PTF.
59. The substantially less costly POC wells cannot define the PMA under A.R.S.
§ 49-244(1) and cannot be used as POC wells for the PTF unless they meet the
requirements of A.R.S. § 49-244(2)(b).74 Appellants established that the existing POC
wells are too far from “the limit projected in the horizontal plane of the area on which
[lixiviant] will be placed,” or PMA, to comply with A.R.S. § 49-244(2)(b)(iii).
3.8.5 The ability of the POC wells to monitor escaped pollutants
60. ADEQ’s witnesses attempted to downplay the significance of the location of
the POC wells by stating that POC wells are not expected to monitor escaped
contaminants, but only to provide a point at which compliance with AWQS may be
determined. As noted above, the APP statutes must be read in pari materia. A.R.S. § 49-
203(A)(10) mandates that ADEQ “[r]equire monitoring at an appropriate [POC] for any
organic or inorganic pollutant . . . if the director has reason to suspect the presence of the
pollutant in the discharge.”75 (Emphasis added.) Dr. Wilson credibly testified and the
74 See United States v. Envtl. Waste Control, Inc., 710 F. Supp. 1172, 1213, 1218-19 (N.D. Ind. 1989) (Location of monitoring wells cannot define waste management area). 75 See also Envtl. Waste Control, 710 F. Supp. at 1219 (“If the groundwater beneath the facility travelled at a rate of one or two feet per year . . . hazardous waste constituents migrating from the original waste deposits would not reach the monitoring wells for several centuries. Such a delay in detection would not be harmonious with the regulatory requirement and intent that the wells be placed ‘at the edge of the waste management area to provide early detection.’"; In the Matter of Landfill, Inc., 3 E.A.D. 461, 468-69 (Nov. 30, 1990) (Where groundwater would take “at least 100 years to reach the nearest downgradient groundwater monitoring well” from a landfill, the monitoring well did not comply with the requirement that wells be placed “at the limit of the waste management area” to “immediately” detect migration of hazardous waste.).
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evidence submitted at the hearing confirmed that the permitted locations of the POC wells
do not allow any meaningful monitoring of pollutants that may escape the PMA during
PTF operations.
61. For all of the foregoing reasons, Appellants established that under A.R.S. §§
49-203, 49-243, and 49-244, the PMA and the location of the POC wells described in the
application and permitted by the Temporary APP were arbitrary, unreasonable, and
unlawful.
3.9 The geochemical model for post-closure restoration
3.9.1 Arsenic
62. A.R.S. § 49-221(A) required ADEQ to “adopt, by rule, water quality standards
. . . for all waters in all aquifers to preserve and protect the quality of those waters for all
present and reasonably foreseeable uses.” A.R.S. § 49-221(C)(3) required that ADEQ
consider “[t]he provisions and requirements of the clean water act and safe drinking water
act and the regulations adopted pursuant to those acts” in adopting AWQS. A.R.S. § 49-
223(A) provides that “[p]rimary drinking water [MCLs] established by [USEPA] before
August 13, 1986 are adopted as drinking water [AWQS]. [ADEQ] may adopt additional
[AWQS] by rule.” Pursuant to this statutory mandate, ADEQ adopted the federal primary
MCL for arsenic of 0.05 mg/l (or 50 ppb) that existed on April 13, 1986, as the Arizona
AWQS. Although USEPA subsequently lowered the primary MCL for arsenic to 10 ppb,
ADEQ has not exercised its discretion to conform the Arizona AWQS for arsenic to the
lower federal primary MCL.
63. The level of arsenic in FCI’s geochemical model was based on BHP having
imported raffinate from the San Manuel mine that contained arsenic. Because FCI does
not intend to import raffinate that contains arsenic, FCI does not anticipate that arsenic will
be a constituent of concern at the PTF. Nonetheless, FCI agreed to a UPL for arsenic at
the federal MCL of 10 ppb at the northwest property line of the leased state trust land, to
be calculated using a fate and transport model based on arsenic measured at MW-01 and
the POC wells.
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64. ADEQ cannot include terms in the Temporary APP that are not specifically
authorized by statute or regulation76 unless FCI specifically agrees to those terms.
Because Appellants’ challenges to ADEQ’s grant of the Temporary APP to FCI is an
administrative appeal, not a tort claim, evidence of the standard of care for a permitting
agency is irrelevant. The only issues in this administrative appeal are whether the
Temporary APP complies with applicable statutes and regulations.
65. ADEQ could not have legally imposed an AQL, UPL, or narrative standard for
arsenic that was less than the AWQS of 50 ppb unless FCI agreed to the lesser standard.
No statute or regulation authorizes ADEQ to require FCI to perform more rigorous
monitoring than it has agreed to perform to ensure compliance with the UPL, which in any
event, could only have been imposed and enforced through FCI’s agreement. Therefore,
Appellants have not established that the UPL of 10 ppb for arsenic at the northwest corner
of the state trust land and the requirement in the Temporary APP that the UPL be
calculated through a fate and transport model were arbitrary, unreasonable, unlawful, or
based upon a technical judgment that was clearly invalid.
3.9.2 Sulfate
66. Because sulfate does not affect human health but, instead, causes aesthetic
concerns because it may make drinking water unpalatable, USEPA has not adopted a
primary MCL and ADEQ has not adopted an AWQS for sulfate. Nonetheless, the
Temporary APP set ALs for sulfate that are less than the secondary MCL of 250 ppm at
three of the four POC wells. The Temporary APP does not include any contingency
actions if the ALs for sulfate are exceeded at the POC wells.
67. For the reasons noted above, because no AWQS exists for sulfate, ADEQ
cannot legally impose any AQL or narrative standard for sulfate unless FCI agreed to
such standard. Therefore, Appellants have not established that the absence of
enforceable standards for sulfate in the Temporary APP was arbitrary, unreasonable,
unlawful, or based upon a technical judgment that was clearly invalid.
76 See A.R.S. §§ 41-1001.01(A)(7) and 41-1030(B).
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3.9.3 Nitrate
68. The level of nitrate in the geochemical model was based on BHP having used
rinse water from a well in the UBFU that contained a high level of nitrate. Because FCI
does not intend to use water from a well in the UBFU for rinsing, it does not anticipate that
nitrate will be a constituent of concern at the PTF. Although the Temporary APP does not
include an AQL for nitrate, it provides that under A.R.S. § 49-243(B)(2) and (B)(3),
because A.A.C. R18-11-406 sets an AWQS of 10 mg/l for nitrate, FCI must meet that
standard at the POC wells. See ADEQ-7 at 43 § 6.4.
69. Because FCI must meet the AWQS for nitrate at the POC wells, Appellants
have not established that the absence of an AQL or a narrative standard for nitrate in the
Temporary APP was arbitrary, unreasonable, unlawful, or based upon a technical
judgment that was clearly invalid.
3.9.4 Change from rinsing to flushing, use of neutralizing agents, and FCI’s failure to formally update the geochemical model
70. A.A.C. R18-9-A209(C) requires that “[a] person shall describe post-closure
monitoring and maintenance activities in an application for a permit or an amendment to
an individual permit and submit it to [ADEQ] for approval.” A.A.C. R18-9-A209(C)(1)
requires an application for an individual APP to including certain information about the
applicant’s plans for closure, including the following:
a. The duration of post-closure care; b. The monitoring procedures proposed by the permittee, including
monitoring frequency, type, and location; c. A description of the operating and maintenance procedures proposed
for maintaining aquifer quality protection devices, such as liners, treatment systems, pump-back systems, surface water and stormwater management systems, and monitoring wells;
d. A schedule and description of physical inspections proposed at the
facility following closure; e. An estimate of the cost of post-closure maintenance and monitoring;
[and]
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f. A description of limitations on future land or water uses, or both, at the facility site as a result of facility operations . . . .
Although BADCT contemplates that ADEQ will negotiate the appropriate BADCT
mechanisms for control and discharge reduction with FCI, an APP is not just an
agreement between ADEQ and the permittee. Instead, an APP is an important public
document that not only instructs the permittee how it must perform its operations, but also
informs members of the public what they can expect during the permittee’s permitted
operations. The public has a right to rely upon the contents of an application that are
incorporated into an APP, including the permittee’s stated plans for closure.
71. It does not appear that FCI ever intended to use the same closure methods
that BHP used on its pilot project. Although FCI now claims that it does not expect
arsenic or nitrate to be constituents of concern during the closure of the PTF, Appellants’
concerns about the inclusion of these constituents in FCI’s geochemical model are
reasonable. In addition, most of the experts and technical witnesses agreed that flushing
likely will require a longer time for restoration than rinsing.
72. A.A.C. R18-9-A209(C)(1) required FCI to include in its application more than
a good-faith effort that was based on closure methods that FCI knew that it would not use
to forecast the contamination that might result under a worst case scenario. Therefore,
Appellants established that after FCI told ADEQ that FCI had different plans for closure
than it had described in the sealed geochemical model and rinsing flow sheet in its
application, ADEQ’s issuance of the Temporary APP and/or failure to require FCI to
formally amend the application was unreasonable, arbitrary, and unlawful.
4 Other appeal issues
73. Appellants did not establish that ADEQ’s decisions to include or not to include
any other terms in the Temporary APP other than those specifically addressed in this
recommended decision were arbitrary, unreasonable, unlawful, or based upon a technical
judgment that was clearly invalid.77
77 In their second post-hearing memorandum, Appellants requested that ADEQ be required to pay Appellants’ costs and attorneys’ fees under A.R.S. §§ 41-1001.01(A)(2) and 41-1007. Because the Board has not yet acted on the ALJ’s recommendation and there is not yet any final decision in this matter, Appellants’ request is premature.
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RECOMMENDED ORDER
Based on the foregoing, IT IS ORDERED that Appellants the Town of Florence,
SWVP-GTIS MR, LLC, Johnson Utilities, LLC, and Pulte Home Corporation’s appeal is
sustained in part.
IT IS FURTHER ORDERED that Temporary APP No. P-106360 is rescinded.
In the event of certification of the Administrative Law Judge Decision by the
Director of the Office of Administrative Hearings, the effective date of the Order will be
five days from the date of that certification.
Done this day, September 29, 2014. /s/ Diane Mihalsky Administrative Law Judge Transmitted electronically to: Toni Towne, Clerk Water Quality Appeals Board
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Acronyms
ADEQ Arizona Department of Environmental Quality
ADWR Arizona Department of Water Resources
ALJ Administrative Law Judge
AMA Active Management Area (overseen by ADWR to conserve groundwater resources)
AOR Area of Review (federal)
APP Aquifer Protection Permit (Arizona)
AL Alert Level (Arizona)
ASLD Arizona State Land Department
AQL Aquifer Quality Limit(s) (Arizona)
AWQS Aquifer Water Quality Standard(s) (Arizona)
BADCT Best Available Demonstrated Control Technology (Arizona)
bgs (feet) below ground surface
BHP BHP Copper Inc.
DIA Discharge Impact Area
FCI Florence Copper Inc. (Intervenor)
IRZ Injection Recovery Zone
ISCR In-situ copper recovery
ISL In-situ leach
K Hydraulic conductivity in feet per day
LBFU Lower Basin Fill Unit
MCL Maximum Contaminant level(s) (federal)
MFGU Middle Fine Grained Unit
OAH Office of Administrative Hearings
PLS Pregnant Leach Solution
PMA Pollutant Management Area (Arizona)
POC Point of Compliance (Arizona)
ppb parts per billion
ppm parts per million
PTF Production Test Facility
SWVP SWVP-GTIS MR, LLC (Appellant)
SX/EW Solvent Extraction and Electrowinning (plant)
UBFU Upper Basin Fill Unit
UIC Underground Injection Control (federal)
UPL Use Protection Level
USDW Underground Source of Drinking Water (federal)
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USEPA United States Environmental Protection Agency
Appellants’ Statement of Remaining Appeal Issues that Were Not Withdrawn
The Permit, its issuance and amendment, and its requirements are arbitrary, unreasonable, unlawful and based upon clearly invalid technical judgments for the following reasons:
1) ADEQ lacks statutory authority to issue the Permit under A.A.C. § R18-9-A210. ADEQ has exceeded its authority, as proscribed in A.R.S. § 49-203(4), and cannot issue a temporary permit under A.A.C. § R 18-9-A2l0 (the “temporary individual permit” rule) because the rule purports to empower the agency with authority to issue permits without requiring the applicant to comply with all of the statutory standards applicable to Individual APP permits. This issue is the subject of a pending appeal in Town of Florence v. ADEQ, Maricopa County Superior Court, Case No. CV2012-014309.
. . . .
4) Even if ADEQ has authority to issue Temporary APPs, the PTF is not a “pilot project” that is eligible for a Temporary APP because:
a) it is not a “pilot project” designed to meet the requirements of A.A.C § R18-9-A210(A)(1);
b) PTF discharges will last more than the six months permitted under R18-9-A210(A)(2);
c) the PTF will produce copper on a commercial scale and incorporates facilities, such as a fully-functioning SX/EW plant, that are intended for full-scale commercial production, not a temporary pilot project;
d) the PTF will not produce data required to develop a permit for commercial operations;
e) the PTF will not produce data required to address the 26 pages of deficiencies identified by ADEQ in its September 7, 2011 Comprehensive Request for Additional Information with Suspension, as the permittee indicated to ADEQ it would;
f) the PTF will not produce data to address deficiencies in the permittee’s Temporary APP application that have not yet been addressed; and
g) the PTF will not produce data to address deficiencies identified by the Appellants or deficiencies that may be revealed by the complete record in this case.
As a result, the PTF does not qualify as a “pilot project” and the Permit was issued in violation of A.A.C. § R18-9-A210 and other APP Legal Requirements.
5) A.A.C. § R18-9-A210 limits a Temporary APP to 12 months, unless a 12-month extension is granted upon application by the permittee. In this case, the permittee’s application was premised on a pilot test schedule that will extend many years beyond the maximum 24-month timeframe allowed under A.A.C. § R18-9-A210. Even if ADEQ possesses authority to issue Temporary APPs, it has violated its own regulation in issuing the Permit for a project that will be active in excess of 24 months.
6) The Permit violates A.R.S. § 49-203 and other APP Legal Requirements because there are no enforceable groundwater quality standards established at any locations that may be impacted during the limited term of the Permit.
7) The location of Point of Compliance (POC) wells identified in the Permit violates A.R.S. § 49-244 and other APP Legal Requirements.
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8) ADEQ’s expressed intent to move forward with consideration of an APP for commercial operations at this site before PTF operations are concluded and the data is analyzed demonstrates that this “pilot test” is a sham and is in violation of APP Legal Requirements.
9) By issuing a 12-month Temporary APP for a project that is expressly designed to operate in excess of 24 months, ADEQ has unlawfully predetermined the decision on a permit extension that has not yet been filed by the permittee.
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13) Estimates of operation, maintenance, closure, remediation and reclamation costs are incorrect or not adequately supported, in violation of A.A.C. § R18-9-A201(B) and other APP Legal Requirements, and are based upon assumptions that ignore risks and reasonable predictions of operational issues in an effort to artificially decrease these costs so that the permittee’s financial assurance obligations are lowered. ADEQ’s approval of the financial assurance mechanism based upon these inaccurate and unreasonable cost estimates violates A.R.S. § 49-243 and other APP Legal Requirements.
14) The terms of the permittee’ s financial assurance mechanism are so vague and ambiguous that the permittee has failed to satisfy the requirements of A.R.S. § 49-243, A.A.C. R18-9-A203, and other APP Legal Requirements.
15) In attempting to satisfy the APP Legal Requirements, ADEQ improperly relied upon conditions that may or may not be contained in an as-yet-unissued Underground Injection Control (UIC) permit from the Environmental Protection Agency, such as the construction of injection and recovery wells and the basis for the Area of Review. Such reliance is unlawful and unreasonable and in violation of Appellants’ due process rights. To the extent ADEQ intended to rely upon permit conditions it assumes will be incorporated into a future UIC permit, it should have stayed approval of the Permit pending issuance of the UIC permit or incorporated such conditions into the Permit.
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19) ADEQ has acted arbitrarily, capriciously, and unreasonably in relying upon certain data, reports and other information from previous operations at the permittee’s mine site and from other mine sites when it is to the agency’s benefit, while ignoring similar data, reports and information when consideration of that information would require changes in the Permit or be detrimental to the permittee’s or ADEQ’s interests.
20) The Permit unreasonably allows the permittee to establish ambient groundwater quality within the PTF well field through a single sample from the PTF wells, which is not statistically valid or consistent with past agency practice or industry standards. As a result, groundwater restoration requirements that will be established in reliance on this ambient groundwater quality data will not reflect pre-mining conditions and will not hold the permittee to the proper restoration standards.
21) The Permit’s monitoring requirements for establishing ambient groundwater conditions, including those within the well field, are inadequate and fail to require that the permittee establish temperature, water levels, and chemistry prior to PTF operations.
22) ADEQ has unreasonably and improperly allowed the permittee to condense the ambient groundwater schedule for a POC well (M52-UBF), such that representative data will not be obtained resulting in Alert Levels and Aquifer Quality Levels will not reflect pre-mining condition conditions and will not hold the permittee to the proper enforcement standards.
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24) Although the Permit correctly requires an aquifer pump test before operations begin, the Permit requirement is inadequate and technically invalid because ADEQ ignored the shortcomings of the previous aquifer pump test at the site and failed to include specific terms and conditions regarding the scope, purpose, or details of that testing.
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26) The Permit improperly allows the permittee to report the results of the aquifer pump test any time before PTF operations begin, including the day before operations begin, without any requirement that ADEQ be given time to review the results or approve the report before PTF operations begin.
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28) ADEQ improperly and unreasonably failed to require monitoring and reporting of 25 groundwater conditions from the injection, recovery, observation, or Westbay wells comprising the PTF well field during and after PTF operations. Such information, including water levels and groundwater quality data, is reasonable and necessary to an adequate evaluation of the PTF as a pilot test project, validation of hydraulic control, validation of hydrologic and geochemical assumptions and models, and protection of drinking water supplies.
29) In violation of APP Legal Requirements, the Permit does not adequately protect drinking water supplies because the Permit only requires groundwater quality to be monitored at a single point (MW-01) within the area that will be impacted by the PTF well field during the life of the Permit and only requires the permittee to report concentrations for sulfate, total dissolved solids, and pH levels at that point.
30) The Permit’s groundwater monitoring requirements fail to mandate monitoring frequently enough or at the proper locations and depths to measure changes in aquifer hydrogeologic conditions that are predicted to occur as a direct and intentional result of mining, data that is needed to evaluate the PTF, validate hydrologic and geochemical assumptions and models, and ensure protection of drinking water resources.
31) The Permit unreasonably fails to require sufficient monitoring for arsenic necessary to validate the permittee’s fate and transport model specific to this contaminant.
32) The Permit’s monitoring requirements fail to adequately gauge the impacts of faulting in or near the PTF on solution migration and hydraulic control.
. . . .
36) The methods for maintaining hydraulic control required by the Permit are inadequate to maintain continuous hydraulic control and are not designed to develop data needed to support an APP application for commercial operations at this site.
37) The methods required in the Permit for measuring and documenting hydraulic control of mining solutions are inadequate to confirm continuous hydraulic control during Project operations, to detect losses of hydraulic control that could contaminate adjoining drinking water supplies, or to develop data needed to support an APP application for commercial operations at this site.
38) ADEQ unreasonably and improperly accepted the permittee’s assumption that the aquifers impacted by mining will act as a homogenous geologic unit (equivalent porous media) in establishing BADCT, monitoring, reporting and restoration requirements in the Permit, despite ample evidence to the contrary. By accepting this assumption, ADEQ failed to require the permittee to develop data, conduct
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analysis, report data and analyses, and take necessary actions designed to address aquifer heterogeneity, faulting and fracturing.
39) In defense of the Permit, ADEQ improperly relied upon partial data from a 1998 pilot test at this site by BHP Copper and assumptions, models and conclusions from the permittee that are based on that incomplete data. ADEQ simultaneously ignored significant, relevant, site-specific data that is known to exist from the BHP Copper pilot test and that should have been used to validate the permittee’s assumptions, models and conclusions before the Permit was issued.
40) The Permit fails to contain adequate monitoring for hydraulic control in light of the increased risks presented by known communication between the drinking water supply of the Lower Basin Fill Unit and the Oxide Zone into which mining solutions will be injected. Additional observation wells should have been required and additional monitoring should have been required at all observation wells (including depth-specific sampling and frequent pH monitoring). The Permit also should have required hydraulic control to be demonstrated through groundwater data plotted on a three-point plane.
41) ADEQ failed to consider site-specific, real-world data collected during and after the BHP Copper pilot test that calls into question whether BHP maintained hydraulic control and that should have been used to validate the permittee’s assumptions, models and conclusions before the Permit was issued.
42) The Permit fails to require monitoring and reporting during PTF operations that are reasonable and necessary to prove that the 40-foot exclusion zone at the PTF wells is protective of drinking water supplies.
43) The Permit fails to require sufficient protections to ensure that the permittee can maintain hydraulic control vertically during PTF operations and fails to require sampling, data collection, and reporting sufficient to demonstrate hydraulic control with regard to proposed commercial operations.
44) The Permit’s requirements related to well field design fail to account for groundwater mounding in and around the PTF well field during and after PTF operations.
45) The proposed and existing POC wells associated with the PTF well field (POC Wells M14-GL, M15-GU, M22-O, M23-UBF, M54-LBF and M54-O) do not meet APP Legal Requirements and do not adequately protect drinking water supplies because the wells are too distant from the areas within the Pollution Management Area that will be impacted by PTF operations during the life of the Permit, such that contaminants could escape the permittee’s control and travel downgradient for years before detection at these POC wells.
46) Proposed POC well M52-UBF does not meet APP Legal Requirements and does not adequately protect drinking water supplies because the well is improperly located in relation to the Process Water Impoundment.
47) In light of variations in groundwater flow, recharge, and similar conditions, the Permit’s POC wells are too few in number and improperly placed outside of known and reasonably foreseeable flow paths to protect drinking water supplies and ensure compliance with APP Legal Requirements.
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57) The BADCT requirements for proposed injection wells are inadequate because ADEQ is permitting injection directly into a drinking water aquifer. ADEQ has previously expanded the scope of BADCT to permit injection of acid mining solutions where drinking water aquifers were separated from the ore body by impermeable layers that greatly reduced the risk of contamination. Expanding the scope of
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BADCT once again to permit direct injection of acid mining solutions into drinking water aquifers is unreasonable and illegal and is a violation of the APP Legal Requirements and the public interest.
. . . .
59) The Permit fails to require validation of fate and transport for the arsenic use protection limit established at the northwest corner of the permittee’s property line.
60) Enforceable standards for nitrate were unreasonably excluded from the Permit, in violation of APP Legal Requirements.
61) The Permit requirements related to sulfate are unreasonable and inadequate and will allow Curis to leave behind a sulfate plume in the aquifer at concentrations three times or more the federal secondary MCL. In violation of APP Legal Requirements, the Permit contains no requirements that the permitee address this sulfate plume, which could render downgradient drinking water supplies unusable.
62) ADEQ failed to adequately consider and address the unique nature of this site, the PTF facility, and proposed discharges, which existing APP statutes and regulations were not designed to address. Although ADEQ possesses adequate authority to enforce Permit requirements that address the unique circumstances arising from the permittee’s intentional injection of acidic mining solutions into the aquifer, ADEQ failed to adequately exercise that authority for the protection of downgradient drinking water supplies.
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64) The Permit unreasonably fails to include pH as a required indicator parameter for hydraulic control.
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70) ADEQ unreasonably failed to include additional narrative standards in the Permit that are necessary to address mining contaminants for which Aquifer Water Quality Standards have not been established, but that can nevertheless have serious impacts on downgradient drinking water quality.
71) Permit requirements related to post-mining monitoring for groundwater quality are inadequate and too limited to prove restoration of groundwater quality to levels that are protective of downgradient drinking water resources.
72) The Permit’s requirements regarding groundwater restoration are inadequate, based upon unsupported assumptions and conclusions, and are not designed to develop data needed to support an APP application for commercial operations at this site.
73) The Permit’s mine block rinsing and groundwater restoration requirements are inadequate, based upon unreasonably optimistic and unproven assumptions, contradicted by experience, facts, analysis and data at this site (including the results of the BHP Copper pilot test), and in violation of the APP Legal Requirements.
74) ADEQ issued the Permit based upon post-closure assumptions regarding the speed and ease of groundwater restoration that were not validated through reference to site-specific data from the BHP Copper pilot test.
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76) The Permit’s reliance upon groundwater restoration completion within nine months is unreasonable. If the permittee is unable to complete restoration within this assumed timeframe, ADEQ will not have the data necessary to evaluate the commercial permit; will not have an enforceable permit to require additional groundwater restoration efforts; and the costs upon which the Permit’s financial assurance is based will be exceeded.
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78) ADEQ failed to require that the permittee adequately explain the restoration process, the mechanisms through which contaminants would be reduced or eliminated during restoration, or the possible alternatives that might be employed during rinsing. For example, ADEQ failed to secure and review the specifications for neutralizing agents that the permittee proposes to use in the groundwater rinsing process, a key element of the permittee’s strategy for accomplishing aquifer restoration within nine months.
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80) The Permit does not require adequate validation, calibration, and auditing of the permittee’s projections, models, water balances, and assumptions with PTF-derived site data.
81) The Permit unreasonably fails to require post-rinsing assessment of aquifer impacts through geophysical logging and aquifer pump tests despite the presence of data suggesting that significant changes in aquifer properties may occur during operations.
82) The Permit unreasonably fails to require that the permittee evaluate its arsenic fate and transport model against arsenic data collected after the BHP Copper pilot test, and explain the trend of increasing arsenic levels in the BHP Copper pilot test wells that continued at least through 2010.
83) The Permit unreasonably fails to require validation of the fate and transport model for arsenic with data collected during and after PTF operations.
84) ADEQ’s reliance on calculated contaminant levels in mining solutions and mining wastes was unreasonable, inappropriate, and in violation of the APP Legal Requirements. The geochemical analysis cited by the permittee in support of these calculations is flawed, employs unreasonable assumptions, and is based upon irrelevant or incomplete data.
85) Contingency requirements within the Permit are inadequate and allow significant delays in the reporting of issues impacting groundwater quality, especially in light of the PTF’s short duration.
. . . .
92) If Curis fails to contain these elements or the sulfuric acid, Johnson Utilities’ wells will become contaminated. Despite this risk Curis failed to include Johnson Utilities’ closest wells in the analysis of potential impacts caused by the pilot program. Allowing Curis to begin the pilot program without considering the potential impacts of its activities to nearby drinking water wells violates APP Legal Requirements and is contrary to the purpose of the APP program: “to control discharges of any pollutant or combination of pollutants which are reaching or may with a reasonable probability reach an aquifer.”
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Table of Contents FINDINGS OF FACT ....................................................................................................................................2
1 Procedure..........................................................................................................................................2 2 Background ......................................................................................................................................6
2.1 Geological and hydrological history near the PTF site.........................................................6 2.2 BHP’s pilot project and the subsequent sale of its land to various entities..........................7 2.3 Other development and water use history near the PTF site.............................................10 2.4 History of ISCR mining in Arizona and elsewhere and ADEQ’s past practices ...............13
3 Evidence on appeal issues ...........................................................................................................14 3.1 The Temporary APP’s compliance with A.A.C. R18-9-A210...............................................14
3.1.1 The initial one-year term and the permissive one-time renewal (appeal issues 4(b), 5, 8, and 9) .......................................................................................................................................14 3.1.2 Proof-of-concept requirements (appeal issues 1, 4(a), 4(c) 4(d), 4(e), 4(f), 4(g), 43, 72, and 76).......................................................................................................................................14
3.2 FCI’s financial assurance mechanism under A.A.C. R18-9-A201(B) and A.A.C. R18-9-A203 (appeal issues 13, 14, and 76).................................................................................................18 3.3 Validity of BADCT provisions that allow pollutants to be injected directly into an aquifer (appeal issues 1, 57, and 62) ............................................................................................................18 3.4 ADEQ’s alleged reliance upon the as-yet-unissued USEPA UIC permit when it issued the Temporary APP (appeal issue 15) .............................................................................................19 3.5 The Temporary APP’s requirements for sampling groundwater.......................................19
3.5.1 The single round of groundwater sampling for the wells in PTF well field (appeal issues 20 and 21) ...........................................................................................................................19 3.5.2 Sampling new POC wells after injection has begun (appeal issue 22).....................22
3.6 ADEQ’s failure to consider BHP’s reports from its 1997-1998 pilot project (appeal issues 19, 39, and 41) ........................................................................................................................22
3.6.1 “Disparities” from BHP’s pilot project..........................................................................22 3.6.2 Indications of migration of fluid at BHP’s pilot project ..............................................28
3.6.2.1 Indication of horizontal migration of fluid during BHP’s pilot project..................28 3.6.2.2 Indication of vertical migration of fluid at BHP’s pilot project ..............................31 3.6.2.3 BHP’s compliance with permit conditions for hydraulic control ..........................35 3.6.2.4 Concerns about the equivalent porous media assumption in modeling during BHP’s pilot project .....................................................................................................................36
3.6.3 Similarities and differences between BHP’s pilot project and FCI’s PTF .................46 3.7 Possible loss of hydraulic control and migration of fluid.....................................................47
3.7.1 FCI’s assumption of equivalent porous media in its groundwater flow and fate and transport models.............................................................................................................................47
3.7.1.1 ADEQ’s review of FCI’s groundwater models (appeal issues 32 and 38) ...............47 3.7.1.2 Possible spatial bias in FCI’s groundwater models (appeal issue 80) ....................50 3.7.1.3 The aquifer pump test prior to injection (appeal issues 24 and 26) .......................53
3.7.2 Maintaining hydraulic control by maintaining a 1-foot inward hydraulic gradient and pumping more fluid than was injected (appeal issues 36, 37, 43, and 80)..................................54 3.7.3 The Temporary APP’s required monitoring for fluid loss or migration .......................61
3.7.3.1 Limited monitoring in PTF well field (appeal issues 28, 30, 40, 43, and 85) ............63 3.7.3.2 Whether the Temporary APP’s requirements for hydraulic control will prevent migration of solution (appeal issues 37 and 44) .......................................................................66 3.7.3.3 Electric conductivity and pH.......................................................................................70
3.7.3.3.1 Electric conductivity (appeal issue 43) ................................................................72 3.7.3.3.2 pH (appeal issues 40, 43, and 64) .........................................................................73
3.7.3.4 Monitoring well MW-01 (appeal issues 29 and 40)....................................................74 3.7.3.5 Acid balance (appeal issues 43 and 80) ....................................................................77 3.7.3.6 The 40-foot exclusion zone (appeal issue 42) ...........................................................79
3.8 The POC wells .........................................................................................................................82 3.8.1 The Pollution Management Area (“PMA”) and the POC wells in FCI’s application .82
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3.8.3 The area where pollutants are or will be placed..........................................................83 3.8.3 The PMA as an imaginary line circumscribing multiple discharging activities...........88 3.8.4 The money that FCI will save by using existing POC wells .......................................91 3.8.5 Distances between POC wells and reasonably foreseeable future drinking water sources (appeal issues 45, 47, and 92) ........................................................................................92 3.8.6 The POC wells’ ability to monitor escaped pollutants from the PTF well field (appeal issues 6, 7, 30, 45, 46, 47, and 85)...................................................................................93 3.8.7 The cone of depression as a liner, dike, or other barrier ...........................................98
3.9 The geochemical model for post-closure restoration.......................................................105 3.9.1 Arsenic (appeal issues 59, 82, 83, and 84) .................................................................107 3.9.2 Sulfate (appeal issues 61 and 70) ...............................................................................110 3.9.3 Nitrate (appeal issues 60 and 84) ................................................................................114 3.9.4 Change from injection to flushing (appeal issues 71, 73, 74, 76, and 78)...............115 3.9.5 Use of neutralizing agents (appeal issues 71, 73, 76, and 78) .................................118 3.9.6 FCI’s failure to formally update the geochemical model and rinsing flow sheet (appeal issues 73, 74, and 76).....................................................................................................118 3.9.7 Failure of Temporary APP to require FCI to perform any testing to update its groundwater models as part of closure (appeal issues 28, 72, 73, and 81)...........................120
CONCLUSIONS OF LAW .........................................................................................................................121 1 Jurisdiction....................................................................................................................................121 2 Burden of proof and applicability of APP statutes and regulations..........................................121 3 Appeal issues................................................................................................................................122
3.1 The Temporary APP’s compliance with A.A.C. R18-9-A210 ...............................................122 3.1.1 The initial one-year term and the permissive one-time renewal period.....................122 3.1.2 Proof of concept under A.A.C. R18-9-A210 .................................................................123
3.2 FCI’s financial assurance mechanism .................................................................................124 3.3 Validity of statutes and BADCT provisions that allow pollutants to be injected directly into an aquifer ..........................................................................................................................................124 3.4 ADEQ’s alleged reliance on an as-yet-unissued USEPA UIC permit .................................125 3.5 The Temporary APP’s requirements for sampling groundwater .......................................125
3.5.1 The single round of groundwater sampling for the wells in the PTF well field.........125 3.5.2 Sampling new POC wells after injection has begun ...................................................126
3.6 ADEQ’s failure to consider BHP’s reports from its 1997-1998 pilot project ......................126 3.7 Possible loss of hydraulic control and migration of fluid...................................................128
3.7.1 FCI’s assumption of equivalent porous media in its groundwater flow and fate and transport models...........................................................................................................................128 3.7.2 Maintaining hydraulic control by maintaining a 1-foot inward hydraulic gradient and pumping more fluid than is injected............................................................................................129 3.7.3 The Temporary APP’s requirements that FCI monitor possible loss of fluid............129
3.7.3.1 Limited monitoring in the PTF well field ..................................................................129 3.7.3.2 Electric conductivity and pH.....................................................................................130
3.7.3.2.1 Electric conductivity............................................................................................130 3.7.3.2.2 pH..........................................................................................................................131
3.7.3.3 Monitoring well MW-01 .............................................................................................132 3.7.3.4 Acid balance ..............................................................................................................133 3.7.3.5 The 40-foot exclusion zone.......................................................................................134
3.8 The designation of the PMA and the location of the POC wells.........................................134 3.8.1 The area where pollutants are or will be placed..........................................................135 3.8.2 The 1,000 or 1,600-foot cone of depression as a BADCT control mechanism to designate the PMA........................................................................................................................136 3.8.3 An imaginary line circumscribing several discharging facilities ...............................139 3.8.4 Substantially less costly alternative POC wells ..........................................................140 3.8.5 The ability of the POC wells to monitor escaped pollutants ......................................140
3.9 The geochemical model for post-closure restoration.........................................................141
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3.9.1 Arsenic ...........................................................................................................................141 3.9.2 Sulfate.............................................................................................................................142 3.9.3 Nitrate .............................................................................................................................143 3.9.4 Change from rinsing to flushing, use of neutralizing agents, and FCI’s failure to formally update the geochemical model .....................................................................................143
4 Other appeal issues ..................................................................................................................144 RECOMMENDED ORDER........................................................................................................................145 Acronyms.................................................................................................................................................146 Appellants’ Statement of Remaining Appeal Issues that Were Not Withdrawn...............................147