JORDEN BISCHOFF & HISER, P.L.C. - portal.azoah.com€¦ · 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16...
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1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Eric L. Hiser (013023) Trevor J.L. Burggraff (027495 ) JORDEN BISCHOFF & HISER, P.L.C. 7272 E. Indian School Road, Suite 360 Scottsdale, AZ 85251 Telephone: (480) 505-3900 Facsimile: (480) 505-3901 [email protected] [email protected] Attorneys for Respondent-Intervenor Rosemont Copper Company IN THE OFFICE OF ADMINISTRATIVE HEARINGS In The Matter Of: ADEQ AIR QUALITY CONTROL PERMIT NO. 55223 ROSEMONT COPPER PROJECT Place ID: 135845 Docket No. 13A-A006-DEQ Docket No. 13A-A007-DEQ Docket No. 13A-A010-DEQ ROSEMONT COPPER COMPANY’S POST HEARING MEMORANDUM (Assigned to the Honorable Thomas Shedden) I. Introduction Rosemont Copper Company (“Rosemont”) hereby submits its Post-Hearing Legal Memorandum in accordance with Case Management Order (“CMO”) No. 18 (August 28, 2013), in support of the Arizona Department of Environmental Quality (“ADEQ”) action granting Rosemont a Class II Air Quality Permit No. 55223 (the “permit”) for the Rosemont Copper Project (“RCP” or the “Project”).
Transcript of JORDEN BISCHOFF & HISER, P.L.C. - portal.azoah.com€¦ · 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16...
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Eric L. Hiser (013023) Trevor J.L. Burggraff (027495 ) JORDEN BISCHOFF & HISER, P.L.C. 7272 E. Indian School Road, Suite 360 Scottsdale, AZ 85251 Telephone: (480) 505-3900 Facsimile: (480) 505-3901 [email protected] [email protected] Attorneys for Respondent-Intervenor Rosemont Copper Company
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In The Matter Of:
ADEQ
AIR QUALITY CONTROL
PERMIT NO. 55223
ROSEMONT COPPER PROJECT
Place ID: 135845
Docket No. 13A-A006-DEQ Docket No. 13A-A007-DEQ Docket No. 13A-A010-DEQ ROSEMONT COPPER COMPANY’S POST HEARING MEMORANDUM (Assigned to the Honorable Thomas Shedden)
I. Introduction
Rosemont Copper Company (“Rosemont”) hereby submits its Post-Hearing Legal
Memorandum in accordance with Case Management Order (“CMO”) No. 18 (August 28,
2013), in support of the Arizona Department of Environmental Quality (“ADEQ”) action
granting Rosemont a Class II Air Quality Permit No. 55223 (the “permit”) for the
Rosemont Copper Project (“RCP” or the “Project”).
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For the reasons set forth herein, Rosemont requests that the Administrative Law
Judge (“ALJ”) recommend to the Director of ADEQ that Appellants’ appeals should be
dismissed and ADEQ’s decision to issue the permit to Rosemont Copper Company should
be affirmed. ADEQ’s issuance of the permit was not arbitrary and capricious, but was
fully consonant with the applicable law and regulations, sufficiently reviewed and
processed through ADEQ’s permit application procedure, and fully supported by the
record.
Appellants have not met their burden in demonstrating by a preponderance of the
evidence that ADEQ wrongfully or improperly approved the permit. The emissions
information presented to ADEQ in Rosemont’s Class II air quality permit application was
wholly representative of the project site and met all state and federal requirements,
including the requirements for a minor source permit application under A.A.C. R18-2-
304. ADEQ completed a proper analysis of the application materials in issuing
Rosemont’s permit and has sufficiently demonstrated that it completed a thorough review
of the application package by applying reasonable professional and technical judgment.
ADEQ staff spent more than 500 hours reviewing applicable requirements and issues
raised in the application, working to achieve additional emissions reductions throughout
the course of the permit process, developing technical guidance, responding to public
comment and ultimately making a technical judgment that the overall emissions estimates
were appropriate and representative of the facility. At the end of this process, ADEQ
determined that the permit should be issued.
Appellants have not demonstrated that Rosemont, its consultant JBR
Environmental (“JBR”), or ADEQ have underestimated the quantity of hazardous air
pollutants (“HAPs”) or presented a credible basis for determining that any single HAP or
any combination of HAPs rose above the major source threshold. Rosemont identified
and quantified HAP emissions from the sources traditionally associated with copper
mining and processing facilities. ADEQ staff reviewed the best methodologies for
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estimating those emissions and used the most reliable and best information available in
attempting to calculate HAPs emissions. The weight of evidence suggested that HAPs are
either not present at quantities greater than the minor source thresholds or that further
measurement is unnecessary because any HAPs emissions would be miniscule and
therefore would not affect either classification of the RCP as a Class I or Class II source
or affect the protection of public health or the environment. Appellants have not
presented any credible evidence, besides mere speculation, that would demonstrate that
the RCP will exceed the 10 ton per year threshold for any single HAP or the 25 ton/year
threshold for all HAPs. Similarly, no credible evidence has been presented showing that
the RCP is a major source for any other reason.
ADEQ does not have authority to deny a permit solely based on a modeling
analysis because modeling for a Class II source is not required by Arizona statute or rule.
The RCP is not a major source, and therefore, not subject to Prevention of Significant
Deterioration (“PSD”) modeling requirements of Title 18, Article 4 of the Arizona
regulations. Modeling for a non-major or Class II source is not a specific requirement of
the Arizona state implementation plan (“SIP”) or a specific requirement of any ADEQ
rules applicable to the RCP; therefore, pursuant to A.R.S. § 41-1030(B), A.R.S. § 49-
427(A), and ADEQ’s rules, ADEQ does not have the authority to deny a permit based on
modeling results.
Regardless of ADEQ’s modeling authority, ADEQ determined in the exercise of its
reasonable professional judgment that Rosemont’s overall emissions estimates were
appropriate and representative of the facility. ADEQ also determined in the exercise of it
reasonable professional judgment that the modeling protocol used by Rosemont was
appropriate, that the meteorological record surpassed Agency requirements, that the
background concentration used were representative, and that other decisions, such as the
process area boundary and NO2:NOx ratio, complied with applicable law or were
supported by technical evidence. Based on the entire record, ADEQ reasonably
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determined in the exercise of its technical judgment that no National Ambient Air Quality
Standard (“NAAQS”) will be exceeded if the facility is constructed and operated in
accordance with its design and permit limitations. ADEQ’s technical judgment is
supported by substantial evidence and entitled to deference.
Additionally, Appellants’ reliance on Arizona Administrative Code Title 18,
Chapter 2, Rule 334 (“Rule 18-2-334”) is not relevant to the proceeding and in no way
affects the Rosemont permit. While Rule 18-2-334 has been adopted by the State, the
rule’s effectiveness is delayed until EPA finalizes approval to incorporate it into the SIP.
The effective SIP that ADEQ is presently operating under, and under which the Rosemont
permit was approved, has been fully approved by EPA and EPA has not initiated formal
action that would call into question the validity of the SIP or permits issued thereunder.
Appellants have attempted to substitute their judgment and speculative
assumptions for that of ADEQ’s technical judgment in considering and interpreting the
permit application. This court should grant substantial deference to ADEQ’s resolution of
the technical complexities of reviewing the permit. As demonstrated by their testimony,
Appellants’ witnesses have no direct experience with Arizona air permitting, and should
not be given deference over the Agency.
II. Issues Presented By Appellants
The various issues presented by Appellants in their Public Comments and Notices of
Appeal,1 and argued during the hearing fall into the following categories:
1. ADEQ incorrectly calculated HAPs emissions under the potential to emit
component of Clean Air Act (“CAA”) Section 112(b). Raised by Dr. Joel L. Fisher
1 See, generally, Joel L. Fisher, Air Quality Permit No. 55223, “Request for Hearing and Notice of Appeal” Under A.R.S. 41-1092 Filed In Accordance With Arizona Department of Environmental Quality Instructions, 13A-A007-DEQ, February 27, 2013; Save the Scenic Santa Ritas, Notice of Appeal of Air Quality Control Permit No. 55223, 13A-A010-DEQ, March 7, 2013; R.V. Zeagler, Jr., Air Quality Permit No. 55223, “Request for Hearing and Notice of Appeal” Under A.R.S. 41-1092 Filed In Accordance With Arizona Department of Environmental Quality Instructions, 13A-A006-DEQ, February 22, 2013; Robert W. Harris, Air Quality Permit Number 55223 Request for Hearing and Notice of Appeal Filed Under the Authority of A.R.S. 41-1092 and Filed Following Instructions Arizona Department of Environmental Quality, 13A-A008-DEQ, February 28, 2013.
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and SSSR. Appellant SSSR has withdrawn their appeal on this issue. See SSSR’s
Notice of Withdrawal of Issues 1, 2, 6 and 7, filed September 11, 2013.
2. ADEQ incorrectly used PM10 as the only particulate matter fraction in its
calculation of HAPs levels. Raised by Dr. Fisher.
3. ADEQ incorrectly and incompletely addressed HAPs airborne emissions including
radionuclides, photochemical oxidation, asbestos, etc. Raised by Dr. Fisher.
4. ADEQ incorrectly asserts that Rosemont’s modeling procedures were sufficient
and failed to sufficiently demonstrate that the project will not cause a NAAQS
violation. Raised by Dr. Fisher, SSSR, and Mr. R.V. Zeagler, Jr.
5. ADEQ incorrectly asserts that a Class II minor source permit is appropriate for
Rosemont and rejects consideration of a Class I major source permit. Raised by
Dr. Fisher and SSSR. Appellant SSSR has withdrawn their appeal on this issue.
See SSSR’s Notice of Withdrawal of Issues 1, 2, 6 and 7, September 11, 2013.
6. ADEQ does not have jurisdiction over the permit process and usurped permit
jurisdiction from Pima County. Raised by Dr. Fisher and Mr. Robert W. Harris.
Mr. Harris’s voluntary vacated his appeal. Case Management Order No. 12,
Severing Docket No. 13A-A008-DEQ, May 30, 2013.
III. Standard of Review and Burden of Proof
Appellants have the burden of proof to overturn ADEQ’s decision to issue the air
permit. See A.A.C. R2-19-119; In the Matter of Carlota Copper Co., Case No. 03A-
A056-DEQ, 27 (Aug. 2003) (“It is the Appellants’ burden to persuade that the Department
has wrongfully and improperly approved a Class II … Permit.”) Appellants must meet
the burden of proof by a preponderance of the evidence. A.A.C. R2-19-119. A
preponderance of the evidence is:
The greater weight of evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior 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.
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BLACK’s LAW DICTIONARY 1301 (9th ed. 2009). The evidence supporting a finding
of preponderance of the evidence must be substantial and probative. In the Matter of: City
Park, Docket No. 02A-U-036-DEQ-RES, 2003 WL 25289316 (ADEQ Apr. 4, 2003).
Speculations or conclusions based on suspect inferences or subjective evaluations do not
satisfy this standard. Id.
Further, even if the record supports an alternative view, so long as it provides an
adequate basis for the position taken by ADEQ, ADEQ’s position should be upheld. In
the Matter of Woosley Flood Protection Dist., Case No. 04A-S156-DEQ, 35 (Jul. 2005)
(quoting Petras v. Ariz. State Liquor Bd., 129 Ariz. 449, 452 (Ct.App. 1981); also see
Vazanno v. Superior Court, 74 Ariz. 369, 372 (1952)). An agency is entitled to deference
in its interpretation of the regulations it is charged with enforcing. In the Matter of: Peter
and Sherri Bronson, Case No. 07A-A013-DEQ, 12 (Nov. 2007); see, e.g., Maldonado v.
Arizona Dept. of Economic Sec., 182 Ariz. 476, 897 P.2d 1362, 1364 (Ct.App.1994)
(Arizona is deferential to the rule-making and rule-interpreting expertise of administrative
agencies so long as they operate within their statutory charter.). ADEQ’s interpretation of
the applicable statutes and rules should be given considerable weight unless there is clear
statutory guidance contrary to ADEQ’s interpretation. Ariz. Water Co. v. Ariz. Dep’t of
Water Res., 208 Ariz. 147, 154 (2004). Arizona courts do not “substitute [their] judgment
for that of the agency on factual questions or matters of agency expertise.” Golob v.
Arizona Med. Bd. of State, 217 Ariz. 505, 509 (Ct. App. 2008) quoting Webb v. State ex
rel. Ariz. Bd. of Med. Exam'rs, 202 Ariz. 555, 557 (Ct. App. 2002). Deference is
particularly appropriate where, as here, the agency is involving in evaluating air pollution
modeling. See Connecticut Fund for Env’t, Inc. v. EPA, 696 F.2d 169, 177-78 (2nd Cir.
1982) (deference due to agency in resolving air pollution modeling issues); Appalachian
Power Co. v. EPA, 153 F.3d 791, 802 (D.C. Cir. 1998) (deference is due when computer
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modeling is at issue because “their scientific nature does not easily lend itself to judicial
review.”).
ADEQ’s actions should be upheld unless they are arbitrary, capricious, contrary to
law, or otherwise lack substantial evidence. Maricopa Cnty Sheriff’s Office v. Maricopa
Cnty. Emp. Merit Sys. Comm’n, 211 Ariz. 219, 222 (2005); Ariz. Water Co. v. Ariz. Dep’t
of Water Res., 208 Ariz. 147, 154 (2004). An “arbitrary” action is one taken “capriciously
or at pleasure,” or an action taken “without adequate determining principle.” Maricopa
Cnty Sheriff’s Office, 211 Ariz. at 222.
Appellants have not demonstrated by a preponderance of the evidence that the
ADEQ Director’s issuance of the Permit was arbitrary, capricious, contrary to law, or
lacking substantial evidence. Appellants’ purported “proof” that ADEQ acted in an
arbitrary and capricious manner in approving the Permit is not substantial or probative.
Appellants’ rely on inapplicable law and regulatory guidance that does not apply to
ADEQ’s review of the permit application. Appellants’ testimony and presentation of
evidence concerning their assumptions, calculations, modeling, and conclusions are at
best highly speculative or lack foundation and therefore, deserve no credence. ADEQ’s
permit application findings should be given full credence. Furthermore, even if
Appellants have shown a viable alternative (which they have not), Appellants have not
shown that ADEQ’s decision was made on an inadequate basis. Appellants’ testimony
and evidence have not demonstrated by a preponderance of the evidence that ADEQ
failed to exercise proper technical judgment in reviewing the Permit application.
ADEQ’s interpretation of its regulations and its application to the permit process is
reasonable. Appellants have not shown through a preponderance of the evidence that the
ADEQ Director’s decision to issue the permit was arbitrary, unreasonable, unlawful or
based upon a technical judgment that is clearly invalid. Consequently, Appellants’
appeals should be dismissed and ADEQ’s decision to issue the permit to Rosemont
Copper Company should be affirmed.
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IV. ADEQ Has Proper Jurisdiction Over The RCP Permit
ADEQ’s jurisdiction over the RCP permitting process is proper and Appellants do
not have standing to argue otherwise. ADEQ followed proper procedures for asserting
state control only after it was determined that problematic ambiguities in the Pima County
Rules existed. In properly asserting jurisdiction, ADEQ did not usurp the Superior
Court’s jurisdiction on the permit application. Finally, while improperly brought by
Appellant, see A.R.S. § 41-1092.03(B) (limits the issues at hearing to those raised in the
appellant’s comments to the agency), there is no evidence to substantiate Appellant’s
claim of improper political interference in the permitting process by the Arizona
Governor’s Office.
A. ADEQ Properly Asserted Jurisdiction
Appellants’ assertion that A.R.S. § 49-402(B) requires Pima County to be the
permitting agency is incorrect. Section 49-402(B) does not place restrictions on when or
how the ADEQ Director may assert jurisdiction but instead details the process the
Director must take in order to assert jurisdiction at the state level. Additionally, Section
49-402(B) provides sole and exclusive jurisdiction to the state, thereby depriving the
county of continuing jurisdiction.
ADEQ asserted regulatory jurisdiction over the permit to resolve an ambiguity in
the permitting rules. See RVZ-11. The ambiguity and potential for duplicate permits lies
where ADEQ is to issue the installation permit, while the Pima County Rules would
require Rosemont to obtain an operating permit from PCAQD. Id. Pima County SIP Rule
112(B)(1)(a), approved by EPA through the Arizona SIP, states that “[e]mission sources
under original jurisdiction of the Arizona Department of Health Services [now ADEQ],
and subject to delegation from time to time, include: Major sources of air pollution,
including any source capable of generating more than 75 tons per day of air contaminants,
uncontrolled.” It is undisputed that the uncontrolled emissions of the RCP exceed 75 tons
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per day of particulate. ADEQ determined this created too much ambiguity in the
permitting process. See RVZ-11.
Appellants also charge that “ongoing” permitting was occurring before ADEQ
asserted jurisdiction, however, this is not the case. See Fisher Post Hearing
Memorandum, p. 7-10. ADEQ did not assume jurisdiction until it had reviewed the
application to determine it was the proper permitting authority, at which time it asserted
jurisdiction and Pima County no longer had jurisdiction. See RVZ-11. This is sound
policy as it creates a basis for principled and reasoned decision-making, such as only
asserting jurisdiction when necessary. In any event, there is no statute or regulation that
bars ADEQ from reviewing an application prior to assertion of jurisdiction.2
B. ADEQ Did Not Usurp Jurisdiction From The Pima County Superior Court
Appellant’s argument that ADEQ usurped jurisdiction from the Superior Court
(Case No. C20120242; Rosemont Copper Company vs. PCAQD) is similarly unfounded.
ADEQ was never a party to that case, therefore the Superior Court never had jurisdiction
over the Agency. ADEQ is not bound by the Superior Court’s decision concerning the
Pima County application. Likewise, none of the Appellants were party to the Superior
Court case; only the Pima County Air Quality District (“PCAQD”) has standing to
challenge this issue. The Appellants are in no different position than any other citizen of
Pima County who might complain that the County lost jurisdiction and they lack standing
to challenge the State’s action. See Blanchard v. Show Low Planning & Zoning Comm'n,
196 Ariz. 114, 118, ¶ 20 (App.1999) (quoting Buckelew v. Town of Parker, 188 Ariz. 446,
452, (App.1996)) (to have standing, a plaintiff must “plead damage from an injury
peculiar to him or at least more substantial than that suffered by the community at
large.”). ADEQ asserted jurisdiction over the case in part due to the Superior Court’s
ruling that deemed PCAQD’s denial of Rosemont’s air permit application as “arbitrary
2 It is not clear why this would be a problem when ADEQ has jurisdiction over the installation permit pursuant to the Pima County SIP even before it asserted jurisdiction over the remaining aspects of the permit. Pima County SIP R. 112.B.1.a.
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and capricious, and an abuse of discretion,” under A.R.S. § 12-910(E), a decision only the
PCAQD could appeal.
C. Appellant’s Argument Concerning the Governor’s Office’s Involvement Is
Irrelevant As It Was Not Raised in Comments
Appellant Dr. Fisher’s claim of improper political interaction or “interference”
from the Governor’s office is irrelevant, as this issue was not raised in Appellants’
comments. A.R.S. § 41-1092.03(B) limits the issues at hearing to those raised in the
Appellant’s comments to the agency (“A notice of appeal or request for a hearing also
may be filed by a party who will be adversely affected by the appealable agency action or
contested case and who exercised any right provided by law to comment on the action
being appealed or contested, provided that the grounds for the notice of appeal or request
for a hearing are limited to issues raised in that party’s comments.”). Because this issue
was raised for the first time after the comment period had closed, it cannot be presented at
the hearing.
Regardless, Appellant has not presented any evidence that demonstrates
interference from the Governor’s office with ADEQ’s decision to grant the permit or that
ADEQ was withholding evidence. ADEQ did not improperly withhold relevant evidence
and disclosed all emails between its Department and the Governor’s office at the hearing.
Appellant did not present any evidence that he “would have” commented had the emails
been provided earlier. Nevertheless, nothing in the emails remotely plays out Appellant’s
conspiracy theory, and in fact, the emails show that the communication that took place
was proper.
ADEQ has proper jurisdiction over the Rosemont permit. Appellant Dr. Fisher has
no standing to challenge the issue of political interference because Appellant did not raise
the issues prior to the close of the public comment period. Regardless, Appellant has not
provided any evidence that political interference occurred.
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ARGUMENT
V. Hazardous Air Pollutants
The Rosemont Copper Project is appropriately classified as a Class II minor source
and Appellants have failed to demonstrate that the Project could ever exceed the major
source threshold for HAPs. HAPs were conservatively estimated using well accepted and
well supported emission factor calculations. Worst case scenarios were used to calculate
emissions from dry stack tailings operations, not even considering the beneficial emission
controls from this process. HAPs from the solvent extraction and electrowinning
(“SX/EW”) operations, internal combustion engines, tanks and external combustion
sources were all properly quantified using ADEQ guidance and EPA emission factors.
Appellants generally claim that Rosemont failed to adequately consider HAPs from
dry stack operations, failed to include many potential sources of HAPs emissions
including asbestos, uranium, radionuclides, and hydrogen sulfide, and failed to consider
non-particulate forms of HAPs such as gaseous and aerosolized forms. Rosemont and
ADEQ demonstrated that Rosemont’s emissions calculations for its dry stack process,
using typical tailings impoundment calculations, provided conservative HAPs estimates.
Rosemont also demonstrated that asbestos, uranium, radionuclides and sulfur were not
present beyond de minimis quantities, and that even if present, would not contribute to
exceeding a HAPs threshold determination. Appellants fail to demonstrate that non-
particulate forms of HAPs from aerosolization, photo-oxidation, gaseous emissions from
blasting or any other claimed chemical reaction will result in HAPs emissions that would
cause the RCP to exceed the major source threshold. Appellants provided no credible
emission factor information to quantity those emissions. Tr. II, p. 592, lns. 14 – p. 593,
ln. 20 (Vaidyanathan); see also Tr. IX, p. 2232, ln. 17 – p. 2233, ln.13 (Toopal).
Appellants’ claims are speculative, at best, and provide no basis for ADEQ or the ALJ to
determine that issuance of a Class II permit was not appropriate.
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A. Rosemont Copper Project is a Minor Source of HAPs Emissions
ADEQ properly classified the Rosemont Copper Project as a Non-Major or Class II
source. Appellants’ contention that Rosemont exceeds the major source threshold for
HAPs is completely without merit. There is no way that Rosemont would be a major
source of HAPs. Tr. III, p. 685, lns. 18-21 (Vaidyanathan).
The thresholds for a major HAP source are 10 tons per year for a single HAP or 25
tons per year for combined HAPs. A.A.C. R18-2-101(75)(b)(i). Rosemont’s HAPs data
were supplied to ADEQ as part of its emissions inventory. See ADEQ-2 and ADEQ-4.
The majority of HAPs emitted at the RCP from ore mining and processing are in the
PM10 fraction. Tr. II, p. 589, lns. 12-19 (Vaidyanathan). Rosemont went through
excruciating detail to quantity its particulate matter emissions, and ADEQ reviewed and
verified these emissions. Tr. II p. 575, lns. 8-11 (Vaidyanathan).
The other sources of HAPs emissions at the RCP come from SX/EW operations,
internal combustion engines, tanks and external combustion sources. See ADEQ-1, Table
3.1. Rosemont used generally accepted industry guidance provided by ADEQ to calculate
HAPs emissions from the SX/EW operations. Tr. IX, p. 2405, lns. 3-19 (Summers).
HAPs emissions from the SX/EW operations were properly quantified in the Rosemont
application and verified by ADEQ. Tr. II, p. 575, lns. 18-24 (Vaidyanathan).
Rosemont used EPA’s TANKS program for HAPs emissions from storage tanks
and AP-42 emission factors for calculating HAPs from internal and external combustion
sources. Tr. IX, p. 2405, ln. 20 – p. 2407, ln. 22 (Summers). The emission factors for
these sources of HAPs are well established and historically documented. Tr. II, p. 577,
lns. 1-10 (Vaidyanathan).
Based on consideration of reasonable and substantiated sources of HAPs and using
credible emission factors, Rosemont calculated the potential to emit for combined HAPs
emissions at 3.37 tons per year. ADEQ-1, Table 3.2.
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B. HAPs from Dry Stack Emissions Appropriately Estimated
Rosemont believes that its use of dry stack tailings, combined with the construction
of waste rock buttresses around the perimeter of the dry stack facility, will better control
blowing fines than a traditional tailings impoundment. Tr. IX, p. 2354, ln. 12 – p.2356,
ln. 7 (Sims). Despite Rosemont’s belief that the dry stack technology will be more
effective controlling particulate matter emissions than a traditional tailings impoundment,
Rosemont’s consultant conservatively quantified HAPs emissions from the dry stack
operations just like a traditional impoundment. Tr. IX, p. 2404, lns. 16-23 (Summers). In
other words, HAPs calculations were based on the assumption that emissions that come
from the dry stack operations look the same as any other tailings operations in use in
Arizona. Tr. III, p. 683, lns. 1-11 (Vaidyanathan). Rosemont and JBR used reasonable
emission factors from AP-42 for the dry stack operations using very worst case
assumptions to estimate what came out of the data. Tr. III, p.620, ln. 25 – p.621 ln. 2
(Vaidyanathan); ADEQ-2, Section 7.2.
Appellants’ claims that HAPs emissions from the dry stack process were not
appropriately calculated were dismissed by ADEQ in its response to comments and
further refuted by ADEQ in testimony. Appellants incorrectly used the entire ore body as
its basis for emissions calculations rather than the particulate matter emitted from ore
mining and processing. Tr. II, p. 518, ln. 19 – p.519, ln. 9 (Vaidyanathan). As ADEQ
testified, ADEQ considered appellant Dr. Fisher’s claims in its response to public
comments, and using a worst case maximum scope of emissions calculation at double the
worst case scenario, ADEQ calculated the total combined HAPs at 5.77 tons per year. Tr.
III, p. 685, lns. 11-17 (Vaidyanathan). There is no way that the Rosemont Copper Project
would be a major source of HAPs. Tr. III, p. 685, lns. 18-21 (Vaidyanathan).
Additionally, the fundamental misunderstanding of the permit further undermines
Appellants’ calculations. For example, Dr. Fisher assumes in his comments that
Rosemont can suspend certain dust control processes when winds exceed 25 miles per
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hour. Tr. VI(2), p. 1612, ln. 17 – p. 1614, ln. 11 (Fisher); Tr. VII, p. 1850, ln. 22 – p.
1851, ln 3 (Fisher); JLF-76, JLF001380-81. However, after being presented with the
permit condition during cross-examination that specifically state Rosemont may not
suspend controls, ADEQ-9, Attachment B.II.A.9, Dr. Fisher conceded that he might not
understand the permit requirements. Tr. VII, p. 1851, ln. 4 – p. 1853, ln. 14 (Fisher).
C. HAPs from Blasting Appropriately Quantified in Particulate Form
Appellants failed to demonstrate that even if non-particulate HAPs were created
from blasting, that these HAPs would result in reclassification of the Rosemont Project to
a major HAP source. In review of Dr. Fisher’s public comments, ADEQ gave very little
weight to Appellant Fisher’s claims that chemical reactions during blasting operations
create HAPs emissions other than particulates, because Appellant provided no basis to
substantiate that emissions can actually occur, nor did Appellant provide any credible
emission factor information to quantify those emissions, even if they did occur. Tr. II, p.
589, ln. 20 – p. 590, ln. 5 (Vaidyanathan). Appellant provided no other information in his
testimony that would allow ADEQ to calculate these claimed blasting emissions produced
by heat, pressure or chemical reactions. Tr. IX, p. 2233, lns. 4-13 (Toopal).
Appellant Dr. Fisher in his comments and testimony speculated that some non-
particulate HAP might be evolved during the blasting process. His hypothesis is that the
blast releases criteria pollutants that could potentially react with ore constituents to create
a HAP. Tr. VI, p. 1524-25 (Fisher). Dr. Fisher further does not use accepted
methodologies for his calculations, including AP-42, which provides that there are no
significant HAPs generated for blasting and no HAPs from the use of ANFO. Instead he
relies on a Canadian blasting study and uses “envelope calculations” to generate results.
See Tr. VI, p. 1526, ln. 12 – p. 1527, ln. 10; Tr. VII, p. 1827 ln. 4 – p. 1828 ln. 11, p.
1861, lns. 7-9; JLF-3. As discussed infra, the conditions for aerosolization or other
chemical reactions dependent upon the presence of an acidic environment are not present.
Tr. IX, p. 2323, ln. 21 – p. 2324, ln. 24 (Cornoyer). There is no quantifiable approach
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presented for Dr. Fisher’s blast chemistries. As he admitted, however, “there wasn’t
enough information to go through that sequence of steps” to develop an emissions factor
for such a reaction. Tr. VI, p. 1525, lns. 10-20 (Fisher). Instead, Dr. Fisher assumed a
range of emission factors. Id.
Additionally, Dr. Fisher’s assumption was based on the ore body containing high
sulfur content, with at least 8% sulfur. Tr. VII, p. 1828, lns. 6-21 (Fisher). However, the
RCP ore body is not a high sulfur ore; it is comprised of no more than 3% total sulfur. Tr.
IX, p. 2323, ln. 21 – p. 2324, ln. 22 (Cornoyer). Under cross-examination, Dr. Fisher
again admitted that he had encountered “problems” in pursuing his HAPs calculation
methodology “and that one of them is trying to establish what level of HAP—of
individual HAP, might be obtained, and that’s very hard to estimate.” Tr. VII, p. 1828, ln.
24 to p. 1829, ln. 3. Because Dr. Fisher could not establish any individual HAP emission
rates, he then just “assumed” various rates of HAP generation for the purpose of
quantifying impacts. Tr. VII, p. 1828, lns. 4-16 (Fisher). Upon closer scrutiny, Dr. Fisher
did not provide quantifiable evidence of HAP emissions different from that calculated by
Rosemont or ADEQ; he simply assumed some rates and even that assumption is based
upon a higher sulfur ore body than is present, which undercuts the technical rationale he
presented.
As ADEQ summarized Dr. Fisher’s claims, gaseous HAPs being formed during
blasting are speculative. Tr. II, p. 592, ln. 14 – p. 593, ln. 20 (Vaidyanathan). ADEQ
does not practice speculative science in permitting. Tr. II, p. 592, lns. 23-24
(Vaidyanathan). ADEQ works with the best information available to the agency to
generate a reasonable estimate of emissions. Appellants failed to provide a reasonable
demonstration that HAPs in any form, other than particulates, occur from blasting.
Additionally, the Appellants, including Dr. Fisher, have not presented probative evidence
that blasting contributes significantly to the HAPs emitted from the RCP beyond that
included in Rosemont’s emission inventory.
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D. A Minimal Quantity of Asbestos in Regulated Form Was Identified
While asbestos is listed as a HAP in Section 112 of the Clean Air Act, there is a
minimal amount of regulated asbestos present in the Rosemont ore body and appellants
fail to demonstrate that quantification of this asbestos results in Rosemont being
improperly classified as a minor HAP source. Asbestos is a listed HAP and is regulated
under NESHAP Subpart M, National Emission Standard for Asbestos. See CAA §
112(b)(1) and 40 C.F.R. § 61.140 et. seq. Asbestos is defined as “the asbestiform
varieties of serpentinite (chrysotile), riebeckite (crocidolite), cummingtonite-grunerite,
anthophyllite, and actinolite-tremolite.” 40 C.F.R. § 61.141 [asbestos](emphasis added).
Not all asbestos minerals are regulated under Subpart 61; only asbestos minerals in the
asbestiform variety.
Rosemont has extensively mapped and analyzed the Project ore body. Rosemont
has drilled approximately 65 miles of core through the ore body. Every inch of the core
that has been drilled has been inspected by a mine geologist. Tr. IX, p. 2318, lns. 1-24
(Cornoyer). The only asbestos mineral in asbestiform variety that was observed by a
Rosemont mine geologist in examining the 65 miles of core sample was one, one-half
inch seam of chrysotile. Tr. IX, p. 2320, lns. 8-23 (Cornoyer). Rosemont mine geologists
observed no tremolite in the asbestiform variety. Id. Appellants have not demonstrated
that this minimal presence of asbestos results in the Rosemont Copper Project being
improperly classified as a minor source of HAPs. In fact, Dr. Fisher concluded that he has
no basis for calculating an asbestos emissions rate. Tr. VII, p. 1838, lns. 23-25 (Fisher).
E. Radionuclides Cannot Contribute to Major Source Classification
Uranium is not a listed HAP under the Clean Air Act. Uranium is, however, a
radionuclide which is a listed HAP. A.A.C. R18-2-101(75)(b)(i), CAA Section 112(b);
see also Tr. III, p. 650, lns. 16-17, p. 651, lns. 2-7 (Vaidyanathan). Rosemont mine
geologists did not observe any telltale signs of uranium in the core samples nor does
Rosemont believe that uranium is present in the ore body in concentrations greater than
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that normally found in southern Arizona. Tr. IX, p. 2321, lns. 11-25 (Cornoyer).
Appellants noted that pitchblende, a uranium-containing mineral, was found in the nearby
King Mine. The King Mine, however, is a separate ore body from the Rosemont ore body
and Rosemont has no reason to believe that pitchblende found at the King Mine is present
in the Rosemont ore body as evidenced by core sample observations. Tr. IX, p. 2323, lns.
5-17 (Cornoyer).
Regardless of the absence of uranium in appreciable quantities, the regulations
preclude ADEQ from looking at radionuclide emissions on an emissions basis. Tr. III, p.
649, lns. 6-16 (Vaidyanathan). There are no rules in place that apply specific emission
thresholds for radionuclide consideration for major source HAP applicability purposes.
Id. Until a major source definition for radionuclide is promulgated, no source would be a
major CAA Section 112 source solely due to its radionuclide emissions. 60 Fed. Reg.
49343, 49346 n.1. The only potential way ADEQ can regulate radon or radionuclide
emission releases from copper mines is if there is a federal rule in place, such as a
National Emission Standard for Hazardous Air Pollutants (“NESHAP”), that specifically
targets radionuclide releases from copper mines. Tr. III, p. 649, lns. 6-16 (Vaidyanathan).
No such rule exists, and appellants’ claims that radionuclides contribute to Rosemont’s
HAP status are unfounded.
F. Geologic Conditions Preclude Formation of Hydrogen Sulfide
Appellant Dr. Fisher claims that gaseous hydrogen sulfide could be formed during
the blasting of ore, contemplating that Rosemont would be a “high” sulfide ore body and
that 8% sulfur content would be enough to trigger this reaction. Tr. VII, p. 1828, lns. 3-21
(Fisher). This claim is speculative, at best. First, the Rosemont ore body contains a low
concentration of sulfur at no more than 3% total sulfur (less that half of what Dr. Fisher
believed to be “high” sulfide ore). Tr. IX, p. 2323, ln. 21 – p. 2324, ln. 24 (Cornoyer).
Second, the Rosemont ore body is contained in a calcium carbonate matrix that is acid
neutralizing; any sulfuric acid generated would be neutralized by the carbonate. Id. Last,
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appellant failed to demonstrate that even if hydrogen sulfide were formed, how ADEQ
could quantify it for emissions calculations. Appellant provided no evidence that would
allow for calculation of gaseous emissions from blasting. Tr. IX, p. 2232, ln.20 – p. 2233,
ln. 3 (Toopal).
G. Aerosolization Is Accounted for in AP-42’s Particulate Matter Factors and
the Geologic Conditions at the RCP Do Not Support Significant
Aerosolization
Dr. Fisher expressed concern that Rosemont’s emission inventory and ADEQ’s
review ignored the aerosol contribution. However, Rosemont used EPA’s AP-42
compilation of emission factors. AP-42 defines the “particulate matter” that is measures
as the following: “TSP [total suspended particulates with a size of 30 microns or less]
consists of matter emitted from sources as solid, liquid, and vapor forms, but existing in
the ambient air as particulate solids or liquids.” EPA, AP-42, Introduction, page 5. Thus,
EPA’s emission estimates directly address the liquid and vapor mixes that were Dr.
Fisher’s concern.
Dr. Fisher in his testimony stated that his aerosolization concern is that hazardous
air pollutant metals in the ore body could be exposed to acid, leach into the acid, and then
be carried to the surface and then be blown, evaporate or otherwise volatilize. Tr. VII, p.
1848, lns. 1-10 (Fisher). He testified that this reaction requires the presence of sulfuric
acid, sulfuric acid mist or water. Tr. VII, p. 1848, ln. 25 – p. 1849, ln. 25. He assumed the
presence of “hosing”. Tr. VII, p. 1862, ln. 1-23. He agreed that the references he used
were based on acidic environments and often required light. Tr. VII, p. 1861, ln. 10-25
(Exh. JLF 31), p. 1862, ln. 24 – p. 1863, ln. 4 (JLF 32), p. 1864, ln. 23 – p. 1865, ln. 10
(JLF 34) (Fisher). The problems with this testimony are that the dry stack tails do not rely
upon hosing, Tr. IX, p. 2355, lns. 13-23 (Sims), that the RCP ore body is carbonate based
and therefore unlikely to generate acid, Tr. IX, p. 2233, lns. 4-22 (Cornoyer) and that most
of the tailings material is not exposed to light (e.g., all that is under the surface). Even Dr.
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Fisher agreed that some of his calculations assumed constituents present in the gas phase
and that they might react differently in the solid phase, Tr. VII, p. 1865, lns. 11-18
(Fisher) and that the prevalence of some of the reactions, such as Arsenic(III) to
Arsenic(V) was “pretty limited.” Tr. VII, p. 1864, lns 10-22 (Fisher). Most importantly,
Dr. Fisher agreed that he had attempted no numeric calculation for how much HAP would
result from aerosolization. Tr. VII, p. 1850, lns 1-4 (Fisher). Based on this record, there
is no probative evidence that the reactions of concern are present in substantial numbers
because of the general absence of water, acid and sunlight in the RCP’s dry stack tailings
and therefore no reason to believe that they would contribute substantially, even if
quantified, which they were not, to the total HAP emissions at the RCP.
Appellants fail altogether to quantify what any non-particulate form emissions
would even be. See Tr. IX, p. 2233, lns. 4-13 (Toopal). As Mr. Vaidyanathan testified,
“ADEQ does not practice speculative science in permitting.” Tr. III, p. 592, lns. 23-24.
Thus, appellants provide no basis for ADEQ or the ALJ to determine whether any error in
permitting was committed, or that if any error was, in fact, committed, whether such error
was legally significant.
ADEQ’s position that it “does not practice speculative science” in calculating
potential source emissions is well supported by EPA guidance and the federal courts. See,
e.g., United States v. Louisiana-Pacific Corp., 682 F.Supp. 1141, 1158 (D. Colo. 1988)
(citing Alabama Power Co. v. Costle, 636 F.2d 323 (D.C.Cir.1979)) (“Hypothesizing the
worst possible emissions from the worst possible operation is the wrong way to calculate
potential to emit.”); see also 1990 NSR Workshop Manual at c.2 (“When determining the
potential to emit for a source, emissions should be estimated for individual emissions
using an engineering approach.” (emphasis added)). ADEQ correctly declined to accept
Appellants’ speculative, worst-case science as a basis for calculating potential emissions
from the Rosemont Copper Project. ADEQ properly considered accepted, well-supported
emission estimates to appropriately classify the project as a Class II source.
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VI. The Rosemont Copper Project’s Modeling Is Adequate For Its Purposes
As part of the permit application process, Rosemont conducted an AERMOD
atmospheric dispersion model (“AERMOD”) that went above and beyond what is
required for a Class II Synthetic Minor Source air quality permit. Rosemont is not
required by Arizona law to conduct modeling to obtain the Class II minor source permit,
but it still demonstrated through a representative and conservative model that the Project
will not exceed any of the NAAQS. Rosemont’s selection of the model inputs was
reasonable, representative, and within the bounds of the federal and state rules and
regulations for air quality modeling.
A. Rosemont Is Not Required to Model by Arizona Law
Rosemont voluntarily submitted modeling as part of its application and was not
required by law to do so. The only modeling requirements in effect at the time Rosemont
submitted its permit application and ADEQ issued the permit are those applicable to
“major sources” or “major modifications” subject to PSD requirements. See, e.g., A.A.C.
R18-2-402(A) & (B) (limiting applicability of article to major sources and major
modification), (H) (modeling requirement generally); A.A.C. R18-2-406(A)(6) (air quality
models generally for PSD); A.A.C. R18-2-409(A) (limiting modeling to sources covered
by Article 4). It is undisputed that the Rosemont Copper Project is not subject to PSD.
Tr. I, p. 74, lns. 15-17 (Massey); Tr. VII, p. 1928, ln. 18 (Mao). Direct modeling
demonstration of compliance with the NAAQS is not an “applicable requirement” for
Rosemont. See A.A.C. R18-2-101(51)(l). This court should not create a NAAQS
modeling requirement where none presently exists.
B. Rosemont’s Modeling Meets or Surpasses Technical Requirements
Regardless of whether Rosemont was required to model, it remains that the
modeling submitted to and approved by ADEQ is of a greater extent and depth than is
typical for a Class II permit and meets and surpasses the technical requirements for a
Class I major source even though Rosemont only applied for the lesser Class II synthetic
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minor source permit. Tr. IV, p. 1023, lns. 12-16 (Sundblom); Tr. XII, p. 2941, lns. 11-16
(Strohm). Therefore, any modeling discussion is premised on meeting the requirements
for Class I modeling since there are no Class II requirements. Rosemont’s data inputs
were all gathered within federal and state rules and regulations, are representative of the
Project, and were modeled appropriately.
1. Rosemont Is Not Required to Have On-Site Data
Appellants question the legitimacy of Rosemont’s background data sources
because a number of the monitors were located off-site. However, Appellants fail to
acknowledge that, pursuant to the modeling rules and guidance, Rosemont could have
used all off-site data and met all requirements for a Class I major source. 40 C.F.R. Part
51, App. W, ¶ 8.3.1.2(b), ¶ 10.2.3.3(b) (hereinafter “Appendix W”). Arizona law imposes
no specific on-site requirements (discussed supra). Rosemont surpassed Arizona
modeling requirements.
2. Rosemont’s On-Site Met and PM10 Data Are Appropriate
Despite not being required to have any on-site data, Rosemont appropriately
located its on-site meteorological station (“met station”) at the center of the pit, the point
where emissions will emanate. Tr. IV, p. 900, lns. 4-7 (Sundblom); Tr. VIII, p. 2097, lns.
21-15 (Mao); Tr. XII, p. 2865, ln. 25 – p. 2866, ln. 15 (Kongara); see also SSSR-20, EPA
Meteorological Guidance, § 3.1.1, 3rd para. (steady-state modeling). Rosemont followed
Appendix W requirements for locating the on-site met station. App. W, ¶ 8.2.2(b). In
addition, while appellants argue Rosemont should have added more meteorological
monitors, it would have been improper to do so; it is neither required by Appendix W nor
the Arizona Modeling Guidelines, App. W, ¶¶ 8.3(c), 8.3.3.1(a), 8.3.3.2(a); Tr. XII, p.
2866, lns. 9-15 (Kongara), and AERMOD cannot handle multiple met station datasets.
Tr. XII, p. 2866, lns. 20-24 (Kongara). To require multiple met stations would be futile.
Rosemont and ADEQ did not arbitrarily fail to “consider” factors; they used the best
location they could for a steady-state dispersion model like AERMOD.
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Likewise, the PM10 monitor was appropriately located on-site and is not required
to be co-located with the met station. Tr. XII, p. 2868, lns 1-5 (Kongara); p. 2868, ln. 14
– p. 2869, ln. 7 (Kongara). Appellants claim that the two must be located together, but
fail to articulate any legal requirement to do so. Tr. VII, p. 1813, lns. 9- 23 (Fisher); Tr.
X, p. 2585, lns. 12-14 (Betterton). Rosemont’s on-site monitors were appropriately
located.
3. On-Site Monitoring Requires One Year of Data
The met station and PM10 monitor were properly located on-site, thus Rosemont is
only required to gather 1 year of site-specific data. App. W, ¶ 8.3.1.2(c). Rosemont
gathered more than the required 1 year of data. ADEQ-8, AZRP06684; see also Tr. I, p.
202, lns. 4-5 (Massey); Tr. XII, p. 2824, ln. 21 – p. 2823, ln. 2 (Gebhart); p. 2839, lns. 18-
25 (Gebhart). Appellants argue that Rosemont’s data collection is incomplete because
Rosemont did not gather a complete 3 years of PM10 data, but Appellants selectively do
not quote the next page of the Arizona Modeling Guidelines, which state: “ADEQ
occasionally requires that applicants monitor one year of background data for particular
criteria pollutants from a representative on-site location for PSD modeling analyses.” See
ADEQ-7, ADEQ Modeling Guidelines, § 3.9, at p. 21 (emphasis added). It is clear that
ADEQ requires only one year of on-site PM10 data and Appellants appear to be confusing
on-site requirements with off-site requirements. See App. W, ¶ 8.3.1.2(b); Tr. VIII, p.
1980, ln. 14 – p. 1983, ln. 15 (Mao). Rosemont’s PM data exceeds the 1 year requirement
by at least 1 year and 9 months; and including Rosemont’s proper data substitution,
discussed infra, Rosemont’s data exceeds the requirement by a whole 2 years.
4. Rosemont’s On-Site Data Substitution Was Appropriate
Rosemont exceeded its 1 year PM10 data requirement by including an additional 1
year and 9 months of actual data and 3 months of representative substituted data. The
modeling guidelines permitted the data substitution, App. W, ¶ 8.3.1.2(a) & 8.3.3.2(c),
and Rosemont provided adequate justification as well as the methods used to determine
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that the substituted data was representative and reasonable. Tr. XII, p. 2867, lns. 1-8
(Kongara). Rosemont and ADEQ reviewed comparable data in the ensuing year during
the same 3 months, and using statistical analysis and the wind rose provided by the on-site
met station, determined that the substituted data was consistent for the missing period. Tr.
VIII, p. 2000, ln. 19 – p. 2002, ln 8 (Mao); Tr. XII, p. 2867, lns. 1-8 (Kongara). ADEQ
reviewed the substitution and agreed. Tr. VIII, p. 2132, lns. 1-13 (Mao). Appellants have
presented numerous unsupported claims to argue that the data substitution was improper,
but have yet to present a compelling reason as to why, if the modeling guidelines only
require 1 year, that the use of 2 years and 9 months with limited substitution for 3 months
would be unacceptable. Rosemont has unquestionably met the 1 year minimum in
Appendix W and has provide a more complete data set with its appropriate substitution.
5. Background Data Are Appropriate
Appellants challenge Rosemont’s selection and use of its background data is not
persuasive because Rosemont’s selections met the modeling guidance. Rosemont utilized
representative monitors and a conservative approach that was well within the
requirements of the modeling rules and regulations. The legal standard for modeling is
very clear; first, modeling is not required to obtain a Class II synthetic minor source
permit, discussed supra, and second, the modeling rules and guidelines are spelled out
directly by EPA in Appendix W and in the ADEQ Modeling Guidelines. App. W, ¶
8.2.2(c). On-site data are the best data if available, and representative off-site data is
appropriate if on-site data are not available.
i. Rosemont’s On-Site Background Monitors Are Representative
Rosemont’s PM10 monitor provided the best available data. As the parties have
agreed, on-site data is the best available data. Tr. VII, p. 1930, lns. 15-19 (Mao); Tr. X, p.
2522, lns. 10-13 (Betterton); Tr. XII, p. 2953, lns. 6-11 (Strohm); Tr. XII, p. 2866, lns. 19-
22 (Kongara). The PM10 monitor provided on-site representative data beyond the
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minimum time requirement. See App. W, ¶ 8.3.1.2(b); ADEQ-7, Arizona Modeling
Guidelines, § 3.9, at p.21.
Appellants claim that the Rosemont’s on-site data demonstrated a potential
NAAQS violation with the inclusion of an abnormally high reading. While Rosemont
believes that the outlier (71.3 µg/m³ recorded the second day of the monitoring program)
is not representative of the typical background concentration observed at the Rosemont
site (see ADEQ-8, p. 15), ADEQ still included the outlier value in its calculations. Tr.
VIII, p. 2093, lns. 13-16 (Mao). Rosemont has testified that the chances are in the billions
of this scenario reoccurring. Regardless, even including this outlier, the modeling still
demonstrated that there would be no violation of the NAAQS. SSSR-12, SSSR 2638,
Table 7.1; SSSR-17; Tr. XII, p. 2860, lns. 17-21 (Kongara).
ii. Rosemont’s Off-site Monitors Are Appropriate And Representative
Rosemont’s off-site monitors are appropriate because they meet the requirements
of Appendix W. Tr. VIII, p. 2126, ln. 11 – p. 2128, ln. 3 (Mao); Tr. XII, p. 2870, lns. 13-
18 (Kongara); Tr. XII, p. 2872, ln. 12 – p. 2873, ln. 12 (Kongara). Appendix W allows
the use of a regional site if representative. The relevant criteria are that the distant sites
“be impacted by similar natural and distant manmade sources.” App. W, ¶ 8.2.2(c). The
Saguaro National Park East (“Saguaro”) and Children’s Park monitors presented by
Appellants, which are located essentially within the urban plume, as all parties agreed, Tr.
XII, p. 2783, lns. 7 -22 (Gebhart); p. 2873, lns. 16-23 (Kongara), are not appropriate for
the Project. Tr. VIII, p. 2011, ln. 18 – p. 2012, ln. 13 (Mao). The Project is not located
within the urban plume based on distance and air patterns shown from the on-site met
station monitoring. Tr. VIII, p. 1991, lns. 17-21 (Mao); p. 2011, lns. 6-20 (Mao); Tr. XII,
p. 2873, lns. 19-23 (Kongara); see also plume discussion at pages 25 to 27 infra.
Appellants argue that Rosemont’s off-site monitors are improper primarily because
the Tucson urban area does not significantly influence them. Appellants point to their use
of the Hybrid Single Particle Lagrangian Integrated Trajectory (“HYSPLIT”) model to
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demonstrate that the Tucson urban area impacts the Rosemont site. See SSSR-36, App. B.
However, Appellants reliance on HYSPLIT to demonstrate an impact on the Rosemont
site is misguided. First, Rosemont does not argue that there is no impact from Tucson;
just that the impact is very limited based on the wind rose at the Tucson Airport, the
Rosemont site, and the nearby Empire site. Tr. VI, p. 1146 ln. 12 – p. 1147 ln. 19 (Mao).
Appellants’ provided no evidence to counter this as their use of HYSPLIT shows only 2 to
3 hours of impact and no more. SSSR-36, App. B. Second, Appellant’s witness, Dr.
Betterton, testified and advocated on behalf of Appellants’ HYSPLIT results, but Dr.
Betterton did not know the modeling assumptions that were used because he did not run
the HYSPLIT modeling, or even discuss its contents with the individual who did. Tr. X,
p. 2565, ln. 17 (Betterton); p. 2591, ln. 7 – p. 2592, ln. 5 (Betterton). There is nothing to
support Appellants’ use of HYSPLIT, and even if support existed, there was no way for
the Agency to review the modeling or to assign its findings any weight. Tr. III, p. 763, lns
7-10 (Vaidyanathan) (ADEQ cannot substantiate an assertion without the underlying
information). Third, HYSPLIT is not designed to show dispersion impacts for an area,
instead HYSPLIT tracks a single particle in a single period of time. Tr. XII, p. 2946, lns.
14-18 (Strohm). HYSPLIT cannot be used to demonstrate the significant impacts that one
area may have on another, likewise, HYSPLIT cannot be used as a basis for arguing the
improper placement of background monitors. Tr. XII, p. 2946, lns. 14-18 (Strohm). Even
Appellant Dr. Fisher admits the HYSPLIT is mainly a research tool and is unaware of it
being used for regulatory purposes. Tr. VII, p. 1912, lns. 16-24.
Appellants have yet to demonstrate any significant link between Tucson and the I-
10 corridor and the Project site. In fact, the evidence from the wind rose demonstrates the
opposite, that there is no frequently recurring pattern of intrusion on the Project site from
the Tucson plume. Tr. XII, p. 2874, lns. 4-8 (Kongara), p. 2945, lns. 2-12 (Strohm); see
also ADEQ-8, Section 4.6 (Figures 3.2 through 3.4 show the frequency of winds from I-
10 to Rosemont is 5%). Additionally, Appellants’ theory on the daily movement of warm
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and cold between the two locations is pure speculation as there is no evidence to suggest
that there is routine movement of air parcels between Tucson and the Project site. Tr. XII,
p. 2941, lns. 2-13 (Strohm).
The selection and use of the background monitor locations was based on the
monitor’s representativeness to the Project site. The Chiricahua National Monument
(“Chiricahua”) monitor was selected and approved by ADEQ for PM2.5 and Ozone
background (none of the Appellants significantly challenged this decision for PM2.5).
Chiricahua was selected because of its similarity to the Project site, including its
elevation, complex terrain features, and its rural location. See ADEQ-8, p. 17-18. These
are the factors outlined in Appendix W, paragraph 8.2.2(c). Appellants argue that because
the Saguaro monitor is closer in proximity and located in Tucson, Saguaro is more
appropriate. However, Appellants failed to demonstrate why a monitor that is influenced
by the Tucson urban plume is appropriate background for a rural location. Additionally,
Appellants’ “proximity” argument does not hold water as they ignore the Green Valley
monitor, which is closer to the Project site than Saguaro. Tr. IV, p. 1148, lns. 12-23
(Mao); Tr. XII, p. 2874, lns. 13-16 (Kongara). While the Green Valley monitor shows
even lower concentrations of ozone, Rosemont took the conservative course and used the
higher reading data from Chiricahua. Tr. XII, p. 2874, lns. 18-20 (Kongara).
Alamo Lake was chosen for NO2 background because it is representative of the
Project site and is Arizona’s only rural NO2 monitor that is not influenced by coal-fired
power plants (i.e., TEP Springville monitor). See ADEQ-8, p. 18-19. The remaining
NO2 monitors in Arizona are located in urban areas that measure whether the areas
exceed the NAAQS. Tr. VIII, p. 1987, ln. 17 – p. 1988, ln. 4 (Mao). Because Rosemont
is not located in an urban area or affected by significant vehicle traffic, it would be
inappropriate and non-representative to use an urban NO2 monitor. Appellants argue that
the Children’s Park monitor in Tucson is more representative because of its proximity, but
again Appellants ignore the fact that Rosemont is not being constructed in downtown
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Tucson. Appellants have offered no justification as to why an urban monitor is more
representative than a rural monitor for a rural site. Appellants complain that there is not a
continuous 3 to 5 year record of ambient concentrations at the Alamo Lake site, but while
the ADEQ Modeling Guidelines state that this length of record is preferred, see ADEQ-7,
Arizona Modeling Guidelines, § 3.9, at p.20, it also states that reference should be made
to Appendix W, id. Appendix W does not require any minimum length of record. App.
W, ¶ 8.2.2. The length of record is tied to the meteorological data, not ambient data,
(comparing) App. W, ¶ 8.2. (with) ¶ 8.3.1. In this situation, Rosemont and ADEQ relied
upon the best available data that was appropriate (e.g., non-urban plume influenced) for
the Rosemont site. Deference to this technical judgment is appropriate. See, e.g., West
Virginia v. EPA, 362 F.3d 861,867-68 (D.C. Cir 2004).
Third, while Rosemont did not model for lead because the emissions were so
minimal, ADEQ did model for lead, which demonstrated no significant health impact.
There is no reason to believe there will be a NAAQS violation. Tr. VIII, p. 2030, ln. 2 –
p. 2031, ln. 18 (Mao).
Appellants have not provided any persuasive support for their contentions that the
background monitors were improperly sited and selected. Rosemont and ADEQ have
demonstrated that representative and reasonable background data were used. Tr. VIII, p.
2126, ln. 11 – p. 2128, ln. 3 (Mao); Tr. XII, p. 2870, lns. 13-18 (Kongara); p. 2872, ln. 12
– p. 2873, ln. 12 (Kongara).
6. Rosemont’s NO2:NOx In-stack Ratio is Appropriate
Rosemont ran the Ozone Limiting Method (“OLM”) using an appropriate 5% in-
stack ratio to calculate the impact of NO2 near the Project site, specifically from tailpipe
emissions of haul trucks. After discussions with ADEQ, Rosemont utilized EPA
Guidance’s default of 50% ratio for blasting, but used a 5% value for the in-stack ratio on
haul trucks. ADEQ-8, Section 5.1.; Tr. XII, p. 2910, lns. 6-7 (Kongara). EPA Guidance
allows use of other values when supported by data. Tr. XII, p. 2876, lns. 5-8 (Kongara);
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40 C.F.R. Part 51, Appendix W 5.2.4(d). Rosemont relied upon an actual monitored value
determined in an air tunnel test showing the 5% ratio was appropriate. Tr. XII, p. 2956,
lns. 3-23 (Strohm); p. 2880, lns. 5-22 (Kongara).
Rosemont relied upon the Montenegro Study (ADEQ-8 Appendix F) in which a
literature review of previously used in-stack ratios was studied. Many of the studies
reviewed in the Montenegro Study relied upon assumptions to determine ratios, whereas
one study conducted an air tunnel test showing an actual ratio range of 2%-6%. Id.
Rosemont used a ratio on the higher end of the air tunnel test – 5%. Tr. XII, p. 2880, ln.
25 (Kongara); p. 2876, ln. 13 – p. 2877, ln. 9 (Kongara). Even the data supplied by the
haul truck manufacturer, Caterpillar, are not based upon actual testing. Tr. X, p. 2587, ln
20 – p. 2588, ln. 2 (Betterton), ADEQ-8, Appendix F, AZRP06767 – AZRP06768.
Generally, manufacturers do not like to give guarantees and are very conservative. Even
so, Rosemont’s selection was within range of the manufacturer’s letter and at the
conservative end of the only available study with test data.
Appellants argue that Rosemont should have used the 50% default ratio, ignoring
the guidance that states that modelers should only use the default when better information
is not available. Tr. XII, p. 2876, lns. 5-8 (Kongara); 40 C.F.R. Part 51, Appendix W
5.2.4(d). Appellants then argue that Rosemont should have used a 30% ratio, but again,
Appellants do not provide any basis for this ratio other than “conservatism” and fail to
demonstrate why the 5% ratio, that was actually tested, should not be used. Appellants
provided no evidence beyond speculation that Rosemont’s values are not appropriate.
Rosemont used the high end of the only actual test data available and ADEQ’s decision to
accept that data in the absence of any other test data was reasonable and supported by
substantial evidence.
7. Rosemont’s Process Area Boundary Was Appropriate
SSSR contends that Rosemont’s process area boundary (“PAB”) was not
appropriate, citing ADEQ’s Modeling Guidelines. The Guidelines merely state that the
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PAB is not automatically the fenceline, but leaves the final determination up to ADEQ.
ADEQ-7, Arizona Modeling Guidelines at 17-18. It is clear from the testimony that
Rosemont has authority to exclude the “general public” from the RCP, Tr. XII, p. 2862,
ln. 24 – p. 2863, ln. 6. (Kongara). Contrary to Dr. Betterton’s testimony, the presence of
“business invitees” does not constitute the general public. As EPA has stated: An important component of the general principles described above is the concept of "general public." We consider this term generally to include anyone who is not employed by or under control of the lessor, but, more specifically, persons who do not require lessor’s permission to be on the property. Based on the latter condition, the general public may not include mail carriers, equipment and product suppliers, maintenance and repair persons, as well as persons who are permitted to enter restricted land for the business benefit of the person who has the power to control access to the land.
EPA, “Interpretation of ‘Ambient Air’ in Situations Involving Leased Land under the
Regulations for Prevention of Significant Deterioration (PSD),” (June 22, 2007); Tr. III, p.
880, lns. 15-19 (Sundblom); Tr. V, 1282, lns. 15-23 (Mao). ADEQ approved the PAB in
Rosemont’s case. Tr. IV, p. 1060, lns. 3-5 (Sundblom); Tr. V, p. 1209, lns. 12-14 (Mao).
The narrower interpretation of the PAB advocated by Appellants would violate both
federal and Arizona law, which define “ambient air” as “that portion of the atmosphere,
external to buildings, to which the general public has access.” 40 C.F.R. § 50.1(e);
A.A.C. R18-2-101(14); A.R.S. 49-104(A)(17) (requiring ADEQ to follow federal law
where same subject addressed); see also Tr. IX, p. 2825, lns 3-14 (Gebhart) (public must
have uninvited or uncontrolled access).
C. “Conservatism” Is Not Required at the Expense of Representativeness
Appellant SSSR, in particular, has argued that Rosemont’s modeling should be
rejected because it is not adequately conservative. This contention is fallacious both in its
premise and in its application to the Rosemont modeling.
First, Appendix W does not elevate “conservatism” over representativeness or
accuracy. Appendix W uses the term “conservative” in the context of simple screening
models to give “conservative” results. See, e.g., App. W, ¶ 2.2 (levels of sophistication of
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models); ¶ 4.2.1 (screening techniques), ¶ 5.2.2.2 (screening for PM10). However, even
Appellant’s expert Gebhart agreed that the Rosemont model was “sophisticated.” Tr. IX,
p. 2759, ln. 27 – p. 2760, ln. 25 (Gebhart). In general, Appendix W expresses that
accuracy and/or representativeness is sought: “In all cases, the model applied to a given
situation should be the one that provides the most accurate representation of atmospheric
transport, dispersion, and chemical transformations in the area of interest.” App. W, ¶
1.0(e); see also ¶¶ 1.0(d), 10.1(a). Thus, invocation of “conservatism” does not trump
representativeness. ADEQ agreed—representativeness is the “key point.” Tr. VIII, p.
2124, ln. 7-22 (Mao).
Appendix W does call for substitution of more conservative values in a few
specific situations. These include situations where the meteorological data are less than 5
years for National Weather Service data or 1 year for on-site data. App. W, ¶ 7.2.1.1(c).
That is not the case at Rosemont, which has more than 1 year of on-site data. Appendix
W requires using the “maximum emissions rate” for equipment. App. W, ¶ 8.1.2.
Rosemont used potential to emit for all process sources, Tr. IX, p. 2394, lns. 10-13
(Summers), the highest vehicle miles travelled year (Year 5) for mobile sources Tr. IX, p.
2395, ln. 7 – p. 2396, ln. 1 (Summers) and did not account for any additional emission
reductions from the dry stack tailings compared to conventional tailings impoundments,
Tr. IX, p. 2403, ln. 20 – p. 2404, ln. 25 (Summers). Even within these constraints,
Rosemont did not use particularly low values, using 0.005 gr/scf for its dust collectors
rather than the manufacturers’ guarantee of 0.0005 gr/scf. Tr. VIII, p. 2167, lns. 22-25
(Toopal); Tr. IX, p. 2194, ln. 24 – p. 2195, ln. 1 (Summers). In modeling, Rosemont used
almost 3 years (2 years, 9 months) on-site data instead of one year and used the most
“representative” background concentrations available. Rosemont used the higher
Chiricahua National Monument data even after it learned that the closer Green Valley
monitor data suggested that lower background concentrations were likely.
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The real disagreement is whether the RCP is influenced by the Tucson urban
plume. For the reasons discussed above, see section IV.B.5.ii supra, Rosemont believes
that the RCP is not significantly affected. But even if it was affected somewhat,
Appellants have not demonstrated that “representativeness” would allow attribution of the
entire Tucson background concentration to the RCP site. Yet that is what Appellants seek
when they argue that the Children’s Park (downtown Tucson) or Saguaro National Park
East (immediately downwind) monitoring data be used to establish background. General
invocations of “conservatism” do not justify such an extreme result in light of Appendix
W’s instructions that the goal is “the most accurate representation of atmospheric
transport, dispersion, and chemical transformations in the area of interest.” App. W, ¶
1.0€.
D. Modeling Demonstrates that the Rosemont Copper Project Will NOT
Exceed NAAQS
The purpose of modeling during the application process is to determine whether a
NAAQS violation is likely to occur. Tr. I, p. 67, lns. 7-24, p. 103, lns. 10-13 (Massey).
This requires consideration of representative worst-case data, such as using
“representative worst case meteorology” on-site data for 1 year (Rosemont used 3 years),
conservative modeling assumptions (Rosemont used regulatory defaults for all switches),
and representative background (Rosemont used most appropriate background value for a
rural source). Rosemont, following EPA guidance, ADEQ guidance, and the Modeling
Protocol approved by ADEQ, prepared and ran an AERMOD model based on Rosemont’s
plan. The modeled values demonstrated that there is no likelihood of a NAAQS violation.
Tr. XII, p. 2882, ln. 20 – p. 2883, ln. 22 (Kongara). ADEQ reviewed the modeling and
concurred. Tr. I, p. 290, ln. 21 – 291, ln. 1-4 (Massey); Tr. V, p. 1222, lns. 8-15 (Mao).
Appellants argue that the modeling done by Rosemont and approved by ADEQ is
improper, but offer only speculation to support their position. After the public comment
period had ended and the permit was issued, Appellants commissioned Dr. Howard
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Gebhart of Air Resource Specialists, Inc. (“ARS”) to run an alternative AERMOD model
(hereinafter the “ARS model”). SSSR-36. The ARS model did not follow an approved
modeling protocol, Tr. XII, p. 2804, lns. 19-25 (Gebhart), and made unfair and
unsupported assumptions that were not representative of the Project site, including taking
background data from urban areas as if the Project were being constructed in downtown
Tucson, see SSSR-36, Section 3, using an inappropriate NO2:NOx ratio far above the
only tested data, and using receptors inappropriately located inside the RCP instead of in
the ambient air, Tr. IX, p. 2825, lns. 15-20 (Gebhart) (“I was aware … that the receptors
that I added were within … process area boundary”). If these tricks are taken away, the
RCP passes modeling. Appellants’ speculative modeling is nothing more than cherry-
picking information until there is a scenario where a NAAQS is violated. In doing so,
Appellants ignore the very guidance they claim ADEQ did not follow. There is no basis
in law to accept Appellants’ argument.
By law, ADEQ cannot deny a permit application based on modeling. Regardless,
Rosemont voluntarily submitted modeling that was prepared wholly within the limits of
EPA and ADEQ regulations and guidance, using representative and conservative inputs,
which demonstrated there is no likelihood for a NAAQS violation. This court should
defer to ADEQ’s technical expertise and judgment in reviewing the technical data
presented, the limitations of modeling discussed by Director Massey, and affirm ADEQ’s
determination that the RCP is not likely to cause a NAAQS exceedance. Additionally,
ADEQ did, for PM10, the pollutant of greatest concern for mining operations, require an
on-site ambient air quality monitor. This provides an added measure of assurance that the
RCP, as actually constructed and operated, will not cause a NAAQS violation.
VII. Conclusion
ADEQ’s issuance of the permit was not arbitrary or capricious, but was fully
consistent with the applicable law and regulations, sufficiently reviewed and processed
through ADEQ’s permit application procedure, and fully supported by the record.
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Appellants have failed to meet their burden in demonstrating by a preponderance of the
evidence otherwise. Because Appellants have failed to meet their burden, as a matter of
law, the ALJ must recommend to the Director of ADEQ that Appellants’ appeals should
be dismissed and ADEQ’s decision to issue the permit to Rosemont Copper Company
should be affirmed.
RESPECTFULLY SUBMITTED this 12th day of November, 2013.
By: s/Eric L. Hiser
Eric L. Hiser Trevor J.L. Burggraff Jorden Bischoff & Hiser, PLC 7272 E. Indian School Rd., Suite 360 Scottsdale, AZ 85251 480-505-3900 Attorneys for Rosemont Copper Company
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ORIGINAL e-filed this 12th day of November, 2013, with: Office of Administrative Hearings 1400 W. Washington Street, Suite 101 Phoenix, Arizona 85007 https://portal.azoah.com/oedf/documents/13A-A006-DEQ/index.html By: s/Trevor J.L. Burggraff
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