ALJDEC decisions subject to certification as final

18-A002-DEQ · Department of Environmental Quality · 2019-02-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 29 and 30, 2018 APPEARANCES: Robert W. Harris on his own behalf; Roy V. Zeagler on his own behalf; Trevor J.L. Burggraff, Esq. and Brandon J. Curtis, Esq. for Rosemont Copper Company; and James T. Skardon, Esq. for the Arizona Department of Environmental Quality ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. Rosemont Copper Company (“Rosemont”) proposes to build and operate an open pit copper mine and related processing facilities approximately 30 miles southeast of Tucson, west of State Highway 83 in Pima County. 2. On April 24, 2018, Arizona Department of Environmental Quality’s (“ADEQ”) issued to Rosemont Permit No. 67001, a Class II air quality permit, which is required before Rosemont can construct or operate the facility. This Permit is a renewal of Permit No. 55223 that was issued by ADEQ on January 31, 2013. 3. The Appellants are Roy V. Zeagler and Mr. Robert W. Harris, who filed separate appeals. ADEQ designated Mr. Harris’s appeal as Docket No. 18-A001-DEQ and Mr. Zeagler’s as No. 18-A002-DEQ. The matters were consolidated for hearing. 4. On June 12, 2018, ADEQ issued an Amended Notice of Hearing setting the matter for August 9, 2018. The matter was continued and the hearing was conducted on October 29 and 30, 2018. 5. Rosemont’s motion to intervene was granted and it participated in the hearing. 6. In processing Rosemont’s renewal application, ADEQ accepted public comments and prepared a Responsiveness Summary addressing or answering all the comments. ADEQ Exhibit 5 is the written comments, Ex. 6 a transcript of the comments made at the public hearing, and Ex. 8 is the Responsiveness Summary. 7. ADEQ addressed Mr. Harris’s comments in responses 3, 4, 5, 9, 10, 11, 12, 13, 16, 20, 23, 35, and 36.

8. ADEQ addressed Mr. Zeagler’s comments in responses 15, 16, 17, 18, 24, 32, and 36.[1] 9. In their appeals, Appellants identified their issues only by reference to the comment numbers in ADEQ’s Responsiveness Summary. 10. Messrs. Harris and Zeagler both appeared at the hearing, but presented no witnesses and did not testify themselves; instead they sought to show that the Permit was flawed through cross examination of ADEQ’s and Rosemont’s witnesses.[2] 11. Appellants failed to show that the Permit is flawed, and to the contrary, the record demonstrates that the Permit was issued in conformity with the applicable regulatory guidance and that it is technically sound and fully defensible. 12. ADEQ presented the testimony of: a. Balaji Vaidyanathan, Manager of ADEQ’s Facilities Emissions Control Section who supervised and participated in the processing of Rosemont’s application. While at ADEQ, Mr. Vaidyanathan has worked on over 100 air quality permits for mines. b. Valerie Thorsen, P.E., an ADEQ Associate Engineer who reviewed the application and emission-calculation spreadsheet and verified that this information was correct, prepared the Permit and the Technical Support Document (TSD), compiled and responded to comments in the Responsiveness Summary, and coordinated with administrative staff for the public hearing.

c. Feng Mao, Ph.D., its Principal Engineer, who has more than twenty years of environmental engineering experience. Dr. Mao reviewed and evaluated Rosemont’s air modeling report and verified that it met the applicable requirements, and he wrote the portions of the TSD and Responsiveness Summary related to modeling. 13. Rosemont presented the testimony of: a. David Krizek, P.E., its Environmental Manager, who has over thirty years of experience working on environmental issues related to mining, and who was the primary manager in developing the permit application at issue. b. David Strohm, Managing Consultant for Trinity Consultants, who has fifteen years of professional experience in the mining industry, including specialized experience in atmospheric modeling, and work on air quality permits. 14. Messrs. Harris and Zeagler did not make a prima facie showing that ADEQ’s responses to their public comments as set out in the Responsiveness Summary were in error, either legally or factually, which provides a sufficient basis on which their appeals can be dismissed. 15. ADEQ’s and Rosemont’s witnesses, who are all qualified to provide expert opinions about the Permit and related issues, provided credible testimony showing that none of the Appellants’ objections had merit and that affirmatively demonstrated that ADEQ acted appropriately when it issued the Permit. 16. Exhibit ADEQ 1 is the Administrative Law Judge Decision addressing the appeals of the first permit. Many of the issues raised in this matter were also raised in that matter, and all of those issues were decided against the positions Appellants take in this matter.[3] There was no evidence adduced to show that any of the Findings of Fact from the first matter are in error. Comment and Response No. 3 17. Mr. Harris alleges that ADEQ, Rosemont, Arizona politicians and others are working together to ensure that the Rosemont copper project will be constructed. 18. Mr. Vaidyanathan provided credible testimony that there was no collaboration between ADEQ and any politicians to ensure issuance of the permit. 19. Mr. Vaidyanathan provided credible testimony that communications between ADEQ and Rosemont were to obtain clarification about Rosemont’s application and to obtain any needed technical information; these types of communications are part of a “healthy process.” 20. Mr. Krizek provided credible testimony that Rosemont never attempted to obtain the permit in an unlawful way, nor was he aware of any politician seeking to wield unlawful influence to ensure the permit was issued. Comment and Response No. 4 21. Mr. Harris alleges that Rosemont has an advantage when legal challenges are raised against it, and that the Arizona Attorney General’s office sends legal representation that supports Rosemont while defending ADEQ. 22. At the hearing, Appellants presented no substantial evidence to support a finding that Rosemont had any illegal or otherwise improper advantage in this process. 23. The Arizona Attorney General is required by law to provide ADEQ with legal representation as requested. Ariz. Rev. Stat. § 49-103(B). Any benefit to Rosemont is incidental to the AG’s fulfillment of that requirement and is not relevant to whether the Permit was properly issued. Comment and Response No. 5 24. Mr. Harris alleges that the Environmental Protection Agency (“EPA”), Pima County Board of Supervisors, Army Corp of Engineers (regional), and Pima County are opposed to granting approval of this permit. 25. Mr. Vaidyanathan provided credible testimony that none of the named agencies provided any public comments to ADEQ about this Permit. 26. Filing public comments is a prerequisite for filing an appeal to the issuance of the Permit, and the opinions of those entities are not properly before this tribunal. Comment and Response No. 9 27. Mr. Harris alleges that ADEQ improperly asserted jurisdiction over the matter while Rosemont’s application for the first permit was pending. 28. This issue was addressed during the legal proceedings related to the first permit, when it was determined that ADEQ had properly exercised its jurisdiction. See Exhibit ADEQ 1. 29. Appellants offer no evidence or legal argument to show that this tribunal has authority to overturn that determination, and Appellants did not demonstrate that it would be appropriate to do so, even if the tribunal does have that authority. Comment and Response No. 10 30. Mr. Harris alleges that Rosemont’s proposed mine does not meet the requirements for issuance of a Class II synthetic minor permit. 31. As pertinent to this matter, ADEQ issues two types of permits: Class I permits that are issued to major sources, and Class II that are issued to minor sources. Major sources are those with the potential to emit pollutants over certain threshold limits, whereas minor sources are those with a potential to emit less than those major-source thresholds.[4] 32. By accepting voluntary restrictions to limit emissions to below the major-source thresholds, an applicant whose unrestricted emissions are above these thresholds may be issued a Class II synthetic minor permit. Once included in a permit, these limits become legally enforceable. 33. Rosemont’s Permit includes restrictions limiting its emissions to levels below the applicable major- source thresholds. 34. Mr. Vaidyanathan and Ms. Thorsen provided credible testimony showing that Rosemont meets the requirements for a Class II synthetic minor permit. There was no substantial evidence or legal authority to show that it does not. Comment and Response No. 11 35. Mr. Harris noted that the first permit allowed the Rosemont to operate an SX/EW plant, and asked whether that was grandfathered-in from the 2013 permit to the 2018 proposed permit. 36. This Comment asks a question and does not appear to raise a substantive issue on which the Permit could be found to have violated statute or rule. Nevertheless, Rosemont is no longer authorized to construct an SX/EW plant because the Permit does not provide that authorization. Comment and Response No. 12 37. Mr. Harris asked why sulfuric acid, sulfur dioxide and volatile organic compounds are listed in the public notice if this Permit does not allow leaching. 38. Because the SX/EW process was the only source of sulfuric acid emissions, sulfuric acid should not have been included in the draft permit, and those references were removed from the final Permit. 39. The SX/EW process is not the only source of sulfur dioxide and volatile organic compounds, and those compounds were properly included in the Permit. Comment and Response No. 13 40. Mr. Harris questioned whether in determining the appropriate emissions factor, it was appropriate for Rosemont’s ore to be classified as high- moisture ore (i.e. ore with a moisture content of greater than 4%), rather than low-moisture ore. 41. There are a number of sources from which emission factors are taken.[5] 42. AP-42, Section 11.24, was the source used for the emission-factor at issue. The appropriate emission factor for ore varies depending on whether the ore has a low moisture content or a high moisture content, with the dividing line being at 4%. See Exhibit RCC 5. 43. Mr. Vaidyanathan and Ms. Thorsen had both reviewed and approved Rosemont’s use of the high-moisture emission factor for this Permit. ADEQ had also approved the use of the high-moisture emission factor in Rosemont’s first permit. 44. Factors that went into Rosemont’s determination that the emission factor for high moisture ore was appropriate included: data from the EPA, literature from surface mining facilities similar to this mine, permits from other copper mines in Arizona, the ore to be mined is saturated, before the ore enters the primary crusher moisture is added to it, and that site-specific soil samples supported that conclusion. 45. Mr. Harris drew attention to test results presented in Exhibit RH 10 showing that the samples had moisture contents of less than 4%. The evidence shows however that those samples were used for leach-testing and that no effort would have been made to preserve the samples to keep them from drying out before testing. In contrast, the soil samples that Rosemont considered were samples taken for geotechnical testing that would have been preserved to ensure that the samples retained their moisture before testing. See Exhibit RH 7. 46. Appellants have not shown that it was inappropriate for Rosemont to use a moisture content of 4%when determining the appropriate emission-factor. Comment and Response No. 14 47. Mr. Zeagler commented to the effect that dust filters cannot achieve a 99.99% efficiency, and that the exhausted air will exceed the NAAQS for PM10 and PM2.5. He requested information from the filter manufacturer(s), including any measured performance parameters per ASHRAE Standard 52.2 2012. He alleged that Rosemont planned to dump the captured material on the ground. 48. As an initial matter, the claimed efficiency of the dust filters is 99%, not 99.99%. But more importantly, the efficiency of the filters is not germane to whether Rosemont complies with the Permit, because the Permit sets a limit on the mass of particulate matter that can be emitted, which is expressed in terms of the grain-loading rate (or grains per dry standard cubic foot of air), and not in terms of the filters’ efficiencies. 49. The manufacturer guarantees that the required grain- loading rates can be achieved. Rosemont will be required to show compliance with the Permit’s limit (0.005 gr/dscf) using the appropriate testing methodologies. 50. ADEQ has significant experience in permitting these types of cartridge-filter dust-collectors in other mining operations. The grain loading rates proposed in this Permit are consistent with the actual results being achieved in comparable units at other mines. 51. During her review of the application, Ms. Thorsen consulted with ADEQ’s “stack tester” who verified that these types of filters are performing as promised at other sites. 52. Mr. Zeagler’s comment to the effect that the exhausted air will be in violation of the NAAQS is in error because compliance with those standards is not measured at the exhaust point and substantial dispersion will occur between that point and the ambient air boundary, which is the point of compliance. Moreover, Rosemont’s modeling, which was verified and accepted by Dr. Mao, shows that there will not be a violation of the NAAQS. 53. ADEQ did not use the ASHRAE standard referenced by Mr. Zeagler in his comment to evaluate the performance of the cartridge filters covered by the Permit, and that standard is not one that ADEQ applies to any mining permits. Appellants presented no substantial evidence or legal argument showing that ADEQ was required to use that standard. 54. The material captured by the filters will be recycled through the applicable process, not dumped on the ground as Mr. Zeagler alleges. Comment and Response No. 15 55. Mr. Zeagler alleged that the pollution control equipment calculations for hourly and annual air movement disagree by a factor of 16% when comparing Rosemont’s application at pages 48 and 172 (Exhibit ADEQ-2). 56. The values that Mr. Zeagler identifies are not in disagreement per se, but rather reflect the fact that the volume of any given mass of a gas will vary depending on the temperature and pressure at which the volume is measured. This is well established science, based on the Ideal Gas Law. 57. In this instance, one set of values Mr. Zeagler identifies is based on the temperature and pressure at which it is anticipated Rosemont’s equipment will operate, and the other is at what is known as “standard” temperature and pressure. Standard temperature and pressure are used to allow regulators to compare results in a uniform manner. 58. In his Closing Argument, Mr. Zeagler attempted to show that Rosemont had not properly applied the conversion factors by failing to account for change in temperature. There is other information in the record showing that Mr. Zeagler is wrong, he has not demonstrated that he has the expertise required to render an informed opinion on the subject, and he has not shown that the calculations (which were verified by Ms. Thorsen) are in error. Comment and Response 16 59. Mr. Harris requested justification for the change from “tons-per-hour” in Table 1 of the first permit to “grains per dry standard cubic foot” in this Permit. 60. “Grains per dry standard cubic foot” is a loading rate, typically referred to as the grain loading rate, whereas tons-per-hour is a mass flow rate. There are 7000 grains in one pound. 61. Multiplying the grain loading rate by the volume passing through the filter in one hour, and converting from grains to tons, results in tons-per- hour. 62. The switch from tons-per-day to the grain-loading rate in Table 1 was made because the grain-loading rate provides a better way to validate the dust collectors’ efficiencies during testing. Comment and Response Nos. 17 and 32 63. Mr. Zeagler argues to the effect that Rosemont’s meteorological data is flawed because it does not appear to account for wind gusts and the gusts at Rosemont’s met-station are lower than those at the Empire RAWs site or Tucson International Airport. He also alleged generally that by using average wind speeds in its modeling, Rosemont was under- stating the actual conditions. He specifically alleged that Rosemont used an average wind speed of 6.1 mph for calculating the wind erosion at the run- of-mine (“ROM”) stockpile, whereas AP-42 Section 13.2.5.2 indicates that estimated emissions should be related to “the gusts of highest magnitude.” 64. Dr. Mao provided credible testimony that Rosemont’s meteorological data was representative of conditions at the site and that this data was used in conformity with the applicable regulations, which was the same conclusion he reached for the first permit. 65. AERMOD, the EPA approved air-dispersion model used, will not accept wind-speed inputs with a duration of less than one-hour, and as a practical matter, 1- hour and 24-hour averages are used because the NAAQS are set in these increments. 66. ADEQ considered the data from the Empire site and found that that data was fairly similar to the data from Rosemont’s meteorological station. Rosemont’s meteorological data is more representative of conditions at the Rosemont site, and therefore that data was the appropriate data for Rosemont to use. 67. The air-dispersion model, AERMOD cannot accept the input of short-duration wind gusts, but rather requires the use of average wind speeds. This is not to say however that wind gusts are not accounted for, because those gusts are part of the data that make up the hourly and 24-hour averages. 68. Contrary to Mr. Zeagler’s assertion, Rosemont did not use AP-42 to calculate wind-erosion emissions at the ROM stockpile. Instead, Rosemont used the “MRI” equation which is found in the American Mining Congress Report: Fugitive Dust Emission Factors for the Mining Industry (FDEMI). 69. Information from AP-42 was however used for inputs to the MRI equation that was used for the ROM stockpile, and AP-42 was used to calculate the wind- erosion emissions from the tailings storage facility. 70. While ADEQ was processing the application, Mr. Vaidyanathan and Ms. Thorsen discussed Rosemont’s use of the MRI equation, each applying independent professional judgment, and concluded that the MRI equation was an acceptable method for estimating emissions from the ROM stockpile. Comment and Response No. 18 71. Mr. Zeagler alleged that the “in-stack ratio” of 5% for mobile sources used in Rosemont’s modeling was unacceptable and that the literature review provided by Rosemont supported the use of a higher in-stack ratio, specifically Caterpillar (5-15%), the EPA’s study (10%) and another report (30%). 72. This issue was addressed in depth at the first hearing where it was determined that the use of a 5% in-stack ratio was appropriate. Exhibit ADEQ 1 at pp. 42 – 44. 73. The only new evidence at this hearing is a letter from truck manufacturer Caterpillar showing that under laboratory conditions the in-stack ratio for its engines is as low as 1%. 74. At this hearing, Dr. Mao reaffirmed that the use of a 5% in-stack ratio was appropriate and acceptable, and there is no substantial evidence to the contrary. Comment and Response No. 20 75. Mr. Harris alleges that Rosemont did not follow the guidelines or rules in setting the process area boundary and he appears to allege that the process area in this Permit is larger than that of the first permit. Mr. Harris asserts that this resulted in the projected impacts on the ambient air being improperly determined because additional dispersion occurs in this larger area.[6] 76. The terms “process area boundary” and “ambient air boundary” are often used synonymously. 77. Compliance with the NAAQS is measured in the ambient air, which is defined as the air that is generally accessible to the public. The “ambient air boundary” is the dividing line between the air that is accessible to the public and that which is not. 78. Ambient air is defined as “that portion of the atmosphere, external to buildings, to which the general public has access.” 40 C.F.R. § 50.1(e); Ariz. Admin. Code § R18-2-101.14. 79. ADEQ has adopted EPA's guidance for determining a site’s ambient air boundary. Applying that standard to this Permit, ADEQ determined that Rosemont’s property’s fence line is the ambient air boundary. 80. In the first permit, ADEQ also determined that the ambient air boundary was the fence line, but it called that boundary the process area boundary, and it applied its own standard in determining the appropriate location for that boundary because it had not yet adopted EPA’s standard. 81. Under EPA’s guidance that was adopted and applied by ADEQ for this Permit, if the public’s access to land is precluded by the use of fences or other barriers, the fence line is the ambient-air boundary. Because Rosemont is required to preclude public access to the mine site by building a fence, the fence line was appropriately determined to be the site’s ambient-air boundary for this Permit. 82. Under the method used by ADEQ for the first permit, ADEQ did not necessarily adopt the fence line as the boundary, and in cases where it found that the fence line was at too great a distance from the process equipment, it would set the boundary inside the fence line. But, if as was the case for Rosemont’s first permit, the fence line was at an appropriate distance from the process area, the fence line was used as the ambient air boundary. Comment and Response No. 23 83. Mr. Harris alleges that Rosemont’s meteorological data was deficient because after the data was collected the station was moved and the tower height was increased by ten feet. 84. EPA’s and ADEQ’s modeling guidance requires only one year of on-site meteorological data. 85. With its application, Rosemont submitted two years of meteorological data collected from a station located at the center of its proposed pit. This was a subset of the data used for Rosemont’s first permit. 86. For both permits, Dr. Mao found that the data was representative of conditions at the site, and that it was appropriate for Rosemont to use the data in its modeling. There was no substantial evidence adduced to the contrary. 87. Although the meteorological data used for this Permit was collected over ten years ago, the data is nevertheless representative of the emission sources’ characteristics because the terrain features and land use have not changed since the data was collected. 88. Rosemont moved its meteorological station because it was being vandalized. All the meteorological data used by Rosemont was collected before it moved the station, and the changes to the meteorological station do not affect the validity of the Permit. Comment and Response No. 24 89. Mr. Zeagler requested ADEQ to provide a reason why the Permit did not include a PM2.5 monitor in addition to the PM10 monitor. 90. ADEQ determined that a PM2.5 monitor was not necessary because the projected impacts on ambient air for that pollutant are sufficiently below the NAAQS. Comment and Response No. 35 91. Mr. Harris alleged that Rosemont has blocked access to Helvetia Road and most of the National Forest. 92. This is not an issue that is within ADEQ’s jurisdiction, and not a basis on which the Permit can be found invalid or deficient. Comment and Response No. 36 93. Mr. Zeagler noted that at least 90 days prior to beginning construction of the mine, Rosemont is required to submit to ADEQ a Public Access Restriction Plan, and he alleged that Rosemont has been restricting public access for the past two years. 94. As of the hearing dates, Rosemont had submitted to ADEQ the public access restriction plan, but ADEQ’s Director had not completed his review. The plan does not need to be implemented until thirty days after its approval by the Director. 95. There was no substantial evidence adduced showing that Rosemont was improperly denying access to public lands, and access to public lands is not within ADEQ’s jurisdiction. CONCLUSIONS OF LAW 1. Appellants bear the burden of proof and the standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 2. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by 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.

Black’s Law Dictionary 1373 (10th ed. 2014). 3. ADEQ evaluated Rosemont’s current application using its experience gained through the permitting of numerous other copper mines and with benefit of having thoroughly reviewed the application for the first permit. ADEQ determined that the Permit was issued in conformity with the applicable regulatory guidance and that it is technically sound and fully defensible. The preponderance of the evidence supports that conclusion and Appellants have not shown that ADEQ’s determination was otherwise in error or contrary to law. 4. As such, Mr. Harris’s and Mr. Zeagler’s appeals should be dismissed. ORDER IT IS ORDERED that Robert W. Harris’s and Roy V. Zeagler’s appeals are dismissed. 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 is five days after the date of that certification.

Done this day, February 11, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Misael Cabrera, PE, Director Department of Environmental Quality

----------------------- [1] In his appeal, Mr. Zeagler also asserted that responses 21, 23, 29, 30, and 34 addressed his comments, but this was not correct, and those comments were not considered at the hearing. [2] In his post-hearing submissions, Mr. Zeagler accuses ADEQ’s and Rosemont’s witnesses, other personnel, and attorneys of lying (or worse), and Mr. Harris accuses people of criminal behavior. These allegations are without merit, and say more about Mr. Zeagler and Mr. Harris than the people they impugn. [3] Messrs. Harris and Zeagler both filed appeals in that matter, but Mr. Harris withdrew his before the hearing. [4] This is discussed in more detail at Exhibit ADEQ 1 at pp. 20-21. [5] A facility’s potential to emit pollutants is estimated by applying “emission factors” to the process at issue. Emissions factors are in essence conversion formulas whereby the amount of material processed provides an estimate of the amount of pollution produced. Exhibit ADEQ 1 at ¶¶ 143 and 144. [6] As a matter of principle, Mr. Harris is correct in that enlarging the dispersion area does reduce the impact of pollutants, but he has not shown that Rosemont’s process area was improperly enlarged.

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