Our basic concerns as a community: Clean Water Potential sources of pollution: Seepage from impoundment of slurry with sulfates and unknown chemicals used in flotation processing, sulfuric acid spills, and naturally occurring radioactive chemicals that are disturbed by mining operations. Key Issues of Sierrita Aquifer Protection Permit The Aquifer Protection Permit consists of several sections that cover the various areas of the mining facility that could potentially pollute the groundwater. Keep in mind that the permit sets the limits that a facility can pollute—it does not mandate "no pollution." The permit also has an attachment that is a signed consent by a Phelps Dodge representative to mitigate the sulfate that is in the aquifer with potential to threaten a water supply. This consent to mitigate the sulfate in the groundwater was a big step forward because sulfate is not regulated by the Environmental Protection Agency. Therefore, the Department of Environmental Quality with the assistance of the Attorney General's Office had to rely on several Arizona Revised Statutes, Arizona Administrative Codes and the Clean Water Act to put some force behind the sulfate clean-up issue. Arizona Revised Statutes used in the Aquifer Protection Permit Phelps Dodge management has maintained for some time now that they intended to stop the pollution that is infringing on the public water supply—BUT they wanted to do it voluntarily. They did not want to sign an agreement that they contended was illegal because ADEQ was taking the law into its own hands. In other words they did not believe there was a law or statute in Arizona to mandate any action due to sulfate pollution. Fortunately for us, they were wrong. There was a Arizona Revised Statute that was useful: A. If the director determines that a drinking water source is being or is about to be rendered unusable without treatment as a drinking water source by a non-hazardous substance that was disposed before the effective date of this chapter by a person that would be a responsible party under section 49-283 if the substance were a hazardous substance, the director may order that person to perform one or more of the following mitigation measures:
B. The director's selection of mitigation measures shall balance the short-term and long-term public benefits of mitigation with the cost of each alternative measure. The director may only require the least costly alternative if more than one alternative may render water usable as a drinking water source. C. A mitigation order issued under this section is enforceable under sections 49-261 and 49-264. So after almost a year of some kind of negotation and delay, Phelps Dodge signed a "Mitigation Order on Consent." There were advantages for Phelps Dodge to formulate the clean-up agreement in this way. The consent agreement applies to the Sierrita Mine only because of the threat to a public/consumer drinking water supply. In other words, if it had been included in the Permit itself, it could have been construed to set a legal precedent for other mines. It seems relevant that the "other" mines would have been only older mines that existed before 1985, because more recent mines are required to have liners on their tailings impoundments. As far as I know, ASARCO Hayden and Phelps Dodge Bisbee operations are the only other older mines in Arizona that might fall under the potential to pollute public drinking water supply. It does seem reasonable that some kind of remedial action has to be taken only when there is potential to pollute a “drinking water” supply. As you can imagine, other mining companies are up in arms over Phelps Dodge’s action because they do not want to lose any ground for their traditional practices. Phelps Dodge’s commitment is truly a service to our community. General Outline of the draft Aquifer Protection Permit
1. Description of the Sierrita mine site on which Phelps Dodge produces copper, molybdenum, and rhenium products. The 115,000-tons-per-day concentrator produces up to 250 million pounds of copper and 25 million pounds of molybdenum annually. [Price of copper remains around $3.50 per lb—you do the math!] 2. List of the individual facilities on the site that have potential to cause damage to groundwater. [Surface water is covered under a more stringent permit system because it is regulated by the Federal Environmental Protection Agency.] The tailing impoundment is only one of 46 facilities capable of producing a contaminent in the aquifer. Fortunately, most of the others contain such toxic chemicals that they have had to have liners all along--not only for environmental safety, but because they contain valuable solvents and solutions necessary in the mining processing. 3. Financial Considerations
4. Mitigation Consent: This order is self-contained in a separate document. If effectively says that the mine management can use just about any means to provide a drinking water supply that meets applicable drinking water quality standards and with sulfate concentrations less than 250 mg/ltr to the owner/operator of an existing drinking water supply of both public and private wells. There is a long list of possible avenues including new supply well, modifying of the screened interval of well, bottled water, mixing good water with contaminated water and "no action." It does not say they have to clean-up the existing sulfate plume. Phelps Dodge has 60 days to present a Work Plan of what they intend to do. This time period is reasonable since Phelps Dodge has been claiming it would voluntarily handle the situation since May, 2005. [See PD Letter to ADEQ] So they have actually had over a year to be working on an effective plan. Even so, the deadline in the Order is full of potential avenues of delay. In addition, the Order includes the formation of a community advisory group discuss issues and compliance in regard to the Mitigation Order. This was suggested by a community member since it has been so difficult for the community to have access to the date necessary to ascertain what is going on with their drinking water supply. Copy of the Mitigation Order on Consent. 5. Monitoring and Sampling Requirements: All sampling, preservation and holding times are in accordance with currently accepted standards of professional practice and analyzed by a Arizona State certified laboratory. There are 12 monitoring sites principally on the east side of the tailings impoundment. Two new wells (MH-28 and MH-29) are to be monitored regularly over some 8 months to determine ambient (or existing) water quality. [There is a problem with this procedure in that these sites may have been polluted over the past 20 years, so to determine the "ambient" water quality as it existed before the impact of mining is not possible.] Unfortunately, some crucial monitoring sites that are off the property were not included in the list. 6. Contingency Plan Requirements: Guidelines for any emergency situations such as leaks and spills of toxic materials. This brings up the problem with historic sulfuric acid spills on site, which have been shown to have been impacting the closed CWC wells 7 and 8. Phelps Dodge maintains that it cleans up the contaminated ground with heavy equipment, but they have never explained where they put the mess. 7. Alert Levels in Groundwater Monitoring Wells: Until the APP is finalized and signed by the ADEQ Director, ADEQ cannot enforce any provisions covered in the draft APP. Once the APP is in force, PD will need to comply with the requirements specified in Section 2.6 (Contingency Plan Requirements) in the permit. An exceedance of an Alert Level is not a permit violation, but does require specific actions to investigate the cause along with an increase in the frequency of monitoring. There is one loop-hole: if the permittee can show that the pollutants are not reasonably "expected" to cause a violation to the Aquifer Quality Level, no action has to be taken. 8. Dam Safety: There were concerns expressed in the August 2005 hearing about the safety of the 3,600- acre-foot impoundment. Impoundment dams have failed in U.S. and elsewhere. When the codes for dam inspections were written up, the mining lobbyists were out in full force to keep the tailings' dams from being inspected. So ADEQ has mandated some monitoring of piezometers along the impoundment that measure pressure to give an indication when something is internally slipping or sliding. Also, there is a specification of "freeboard," to assure that the impoundment does not overflow. Conclusions: We have had some success with Phelps Dodge because the price of copper is up and the local operations manager is committed to working with the community. He was transfered to the mine when the sulfate issue became public, so we can assume he was picked because of his willingness to come up with a solution that is amiable to everyone. However, these are unique conditions that could change. The members of the community are concerned that should the plume not be cleaned up or re-directed back in the direction of the mine then other public supply water wells could be affected. Will Phelps Dodge pay for new wells in the future? This is not confirmed in the APP or the Mitigation Order. Also, t here has been expressed a concern that the community committee will become an ineffective mouthpiece for the mine, somewhat as the history of Phelps Dodge and the Green Valley Coordinating Council. However, since the two most educated and vocal community members have been asked to be on the committee, there appears to be no grounds for this fear. Others have expressed concern that the commitee will not have the technical expertise to make any impact. It is not rocket science to look at test results to see if they are higher than the allowed levels. Phelps Dodge has all the technical expertise to engineer any system they need; they do not need a commitee for technical advice. This committee is created so the community can access to data and reports locally. A.C.C.: Arizona Administrative Code ADEQ: Arizona Department of Environmental Quality AL: Alert Level, water quality values which would trigger some further analysis or preventive action. AQL: Aquifer Quality Limit(s) An AQL is an Aquifer Quality Limit, which is defined by ADEQ. It equals the AWQS, unless the AWQS is exceeded for that contaminant at the time of permit issuance. In that case, the AQL is set at the ambient (existing) level for that constituent at that Point of Compliance. The AQL is the level that the permittee cannot exceed, or it will be a violation of the permit.A.R.S.: Arizona Revised Statute AWQS: Aquifer Water Quality Standard, established for various constituents based upon Arizona State statute and rule.BADCT (called "bad-cat"): Best Available Demonstrated Control Technology
CERCLA: Comprehensive environmental response, compensation, and liability act of 1980, as amended (P.L. 96-510; 94 Stat. 2767; 42 United States Code sections 9601 through 9657), commonly known as "superfund". DL: Discharge Limit Freeboard: distance from the slurry level to the top of the impoundment or holding pond GWS-APP&DRU: (ADEQ) Groundwater Section, APP & Design Review Unit LCRS: Leak Collection and Recovery System PLS: Pregnant Leach Solution POC: Point(s) of Compliance (compliance determined by testing monitor wells at these points) PQL: Practical Quantitation Limit. lowest concentration of a given contaminant that the laboratory can assign a value to when doing a lab analysis.QA/QC: Quality Assurance/Quality Control SMRF: Self-Monitoring Report Form RLL: Rapid and Large Leakage rate WPS-MU: (ADEQ) Water Permit Section, Mining Unit WQCS/EU: (ADEQ) Water Quality Compliance Section, Enforcement Unit WQFSU: (ADEQ) Water Quality Field Service Unit
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