Joro Walker Charles R. Dubuc, Jr. WESTERN RESOURCE ADVOCATES 150 South 600 East, Suite 2A Salt Lake City, UT 84102 jwalker@westernresources.org; rdubuc@westernresources.org 801-487-9911 Attorneys for Petitioner, Living Rivers ______________________________________________________________________________ BEFORE THE UTAH WATER QUALITY BOARD In the Matter of PR Spring Tar Sands Project, Ground Water Discharge Permit-by-Rule No. WQ PR-11-001 RESPONSE TO RECOMMENDED ORDER September 11, 2012 Pursuant to Utah Administrative Code R305-6-215(2)(b), Living Rivers submits this Response to Administrative Law Judge Sandra Allen's (ALJ) Memorandum and Findings of Fact, Conclusions of Law, and Recommended Order (Recommended Order or Order). For the reasons outlined below, Living Rivers respectfully requests that the Water Quality Board set aside ALJ Allen's Recommended Order. INTRODUCTION On March 16, 2011, Living Rivers filed its Request for Agency Action (RAA) challenging the Executive Secretary's1 February 15, 2011determination (2011 Determination) that the PR Spring Tar Sands Project (PR Spring) qualified for permit-by-rule (PBR) status under Utah Admin. Code R317-6-6.2(A)(25). In boiling Living Rivers' challenge down to its essence, 1 For the purposes of this Response, Living Rivers attributes to the Executive Secretary all actions taken by the Division of Water Quality (DWQ) in this matter. the ALJ noted that "[t]he parties [have] agreed that the main issue is whether the Executive Secretary had substantial evidence to make the 2011 determination...." Pre-Hearing Order at 3. However, the ALJ has allowed the ground to shift under this challenge to the point where she presents you with a very different question. She asks you to determine - based on information you have before you now - if the 2011 Determination was supported by substantial evidence in light of 1) whether ground water, as that term is defined in statutes and regulations, exists in the project area; and, 2) if such ground water exists, whether the mine presents a greater than de minimis risk of affecting the quality of that water? Those are two fundamentally different questions and call for an examination of the evidence as it exists at two completely different points in time: when the decision was made, and now. For the reasons outlined below, this proceeding should have been conducted as a review of whether the Executive Secretary had substantial evidence to make the 2011 Determination in light of the record he had before him at the time he made that decision. Instead, the record contains a substantial amount of new evidence, some of which was generated long after the Executive Secretary's decision. To the degree that new evidence has served as the basis for the ALJ's Recommended Order, and to the degree that information the Executive Secretary actually considered was invalidated or marginalized, the Recommended Order must be set aside. Additionally, an issue fundamental to either of these questions is whether, according to applicable statutes and regulations, ground water exists or could exist in the area of the mine. The question of the existence of ground water is a central one in this matter, but it cannot be answered unless you ask the right question. In other words, determining whether ground water exists depends on how you define it, and when you look for it. 2 To determine the amount of ground water that must be protected, the Water Quality Act defines "Waters of the State" as "all [] bodies or accumulations of water, surface and underground," Utah Code Ann. ? 19-5-102(23)(a), and "Discharge" as "the addition of any pollutant to any waters of the state." Id. ? 19-5-102(7) (emphasis added). As the Executive Secretary admits, ground water accumulation the size of a bucket would quality for protection under the law. Hearing Transcript (hereinafter Hrg. Tr): 89. However, in her Recommended Order the ALJ disagrees with this, stating that the law does not require the protection of all quantities of ground water, only ground water under sufficient hydrostatic pressure to flow into a well, and presumably a seep or spring. Recommended Order at 27. While definitively admitting that ground water is present in the area of the mine above 1,500 feet, Hrg. Tr: 119, 129, 165, 169, 170, 173, the Executive Secretary also states that it is impractical to protect all accumulations of ground water. Hrg. Tr: 168. The question, then, is whether the Executive Secretary has the discretion to only require the protection of some arbitrarily determined accumulation of ground water, or whether he is required to protect all accumulations of ground water as required by law. Further, the Recommended Order sidesteps the questions of the ephemeral nature of ground water at PR Spring. At 8,200 feet, the mine is located in a high desert area, with precipitation amounts, mostly in the form of snow, comparable to Salt Lake City. Like Salt Lake, precipitation and runoff are seasonal in nature and ground water recharge occurs primarily in the spring. Because of its ephemeral nature, it's not enough to ask whether ground water at the mine exists at a single point in time. While the answer may be "no" if you ask that question today, at the end of the water year, it is likely to be "yes" shortly after spring snow melt. 3 Because the ALJ fails to account for the seasonal nature of this water resource, she also fails to properly account for ground water in the area of the mine as defined by state law. Finally, because the ALJ determined that there was a lack of ground water in the area of the mine, the question of whether proper testing were conducted on the waste stream was given short shrift. Even assuming that the ALJ was correct in finding that the tests that were run were run correctly, no attention was paid to either the admission by the Executive Secretary that the appropriate tests were not performed, Hrg. Tr: 196, 199, 204, 206-07, or the agreement by all of the parties that there were tests that could have been run to determine the level of contamination, but that were not performed. Handle Testimony at 88; Johnson Initial Testimony at 21. Because even a permit-by-rule cannot be based on the outcome of tests that have not been performed, the Recommended Order must be set aside. ARGUMENT Due to the page limitation associated with this Response, Living Rivers hereby preserves and incorporates by reference the arguments it has made through the course of this proceeding. I. Living Rivers' Challenge Must Be Based on the Record Before the Executive Secretary at the Time He Made His Decision. The first issue before the Board is the scope of the evidence that has been considered in this hearing process. Prior to the hearing, Living Rivers objected to the inclusion of data associated with the 2011 drilling conducted by US Oil Sands (Oil Sands) at the mine site because that drilling occurred several months following the issuance of the 2011 Determination. However, in her Pre-Hearing Order the ALJ states that this proceeding was de novo, and that whether the Executive Secretary considered data presented in the hearing was not relevant. PreHearing Order at 1. As interpreted by the ALJ, a de novo review is limited to a new trial, without consideration of what was before the agency when the decision was made. However, a 4 de novo review has at least two possible interpretations when applied to a review of an administrative decision. See Pledger v. Cox, 626 P.2d 415 (Utah 1981). As outlined below, a proper interpretation of that term must be consistent with the concept of limiting consideration of evidence to that contained within the record before the Executive Secretary as it existed on the date of issuance of the 2011 Determination. Living Rivers was entitled to a de novo review based on the record before the Executive Secretary at the time he made his decision. The first possible meaning of a de novo review is a hearing based strictly on the record before the Executive Secretary, without the benefit of the introduction of additional evidence. This would include a new consideration of the questions of fact and law in the record before the Executive Secretary and is in line with an appellate court review and with the federal administrative appeal process. The primary reason that this type of review is appropriate in this situation, and should have been followed by the ALJ, is because this Board's order must answer the question posed in Living Rivers' challenge - namely, whether the Executive Secretary acted reasonably based on the evidence in the record he had before him at the time he made his decision. Of necessity, that means that the Recommended Order should have been limited to an examination of that record. To do otherwise, as the Recommended Order suggests, fails to answer that fundamental question. As important, the Ground Water Quality Protection regulation cited as justification for the permit-by-rule requires that the Executive Secretary make his determination only after a review of the application submitted by the company. Utah Admin. Code R317-6-6.2(A)(25). Again, Living Rivers has challenged that review of the application - not some post hoc evidence attempting to justify why the 2011 Determination was correct. 5 A number of policy considerations support a de novo review without consideration of additional evidence. There are several policy reasons why the de novo review should be limited to evidence that was before the Executive Secretary when he made his decision, or at the very least that such evidence should be taken as true or given special consideration. First, to do otherwise would completely undermine the application and permit challenge process. Time and again during the hearing, Oil Sands and the Executive Secretary have asked that information submitted by the company in its Demonstration and NOI be considered invalid or not be given the weight it deserves. For instance, while the initial record is filled with information pointing to the existence of ground water in the area of the mine, IR - 000006-7, 075, 080, 127, 544, Oil Sands and the Executive Secretary now argue that such ground water does not exist, that the reported seeps are not real seeps and that the shallowest aquifer is 1,500 to 2,000 feet below the surface. They make this argument while admitting throughout the hearing that shallow ground water exists in the area of the mine. See Hrg. Tr: 119 -20, 129, 165, 169-70, 173. Further, while a JBR report designed to account for the presence of ground water in the area of the mine definitively reports such a presence, the Oil Sands and the Executive Secretary now argue that this report was not authored by a reliable source. See Hearing Exhibit (hereinafter HE) 203, Exhibit A at 2-3; see also Hrg. Tr: 361-64. Similar inconsistencies exist regarding the leachate testing conducted on the tailings. Second, allowing Oil Sands and the Executive Secretary to discredit the information initially submitted by the company implies that Oil Sands failed to initially provide trustworthy information, which is punishable by law. Such a position also necessarily calls into question any future information provided by the company, thus undermining the entire permitting process. 6 Third, such substitution of evidence prevents the public from being able to meaningfully participate in the permitting process and from commenting on or challenging the "real facts" of the case. In other words, the company and the Executive Secretary are attempting to substitute the facts and analysis that were subject to notice and comment with a completely different set of facts and analysis. Fourth, allowing Oil Sands and the Executive Secretary to discredit the information initially submitted by the company completely changes the landscape of this permit challenge. Living Rivers made a decision to challenge the 2011 Determination based on what was in the record when the Executive Secretary made his decision. Allowing the basis for the decision to change so radically in the middle of the process places the public in the impossible position of not being able to determine prior to bringing a challenge what the basis for the Executive Secretary's decision really was or whether a challenge was even necessary. Fifth, condoning Oil Sands and the Executive Secretary's attempts to discredit the initial record rewards sloppy work and sends a signal that it is permissible to develop a flimsy record in the first place. In other words, if evidence can be added to the record after the fact, there is little incentive to create a sound record initially because Oils Sands and the Executive Secretary know that if the decision is challenged, they are free to supplement the record. Even if this matter is tried anew, any additional evidence must be limited to an explanation or clarification of the existing record. The second interpretation of de novo means, as the ALJ suggests in her Recommended Order, a matter tried anew. This has two possible variations. The first variation is, as the ALJ states, to throw open the doors and try the matter from scratch, with complete disregard for what was on the record when the decision was made. The second variation is to not give deference to the decision made by the agency, but to limit any evidence introduced to an explanation or 7 clarification of what the agency had before it at the time it made its decision. For the reasons stated above, the introduction of new evidence must be consistent with the concept of limiting consideration of evidence to that contained within the record as it existed on the date of issuance of the 2011 Determination. Any other approach throws open the door for post hoc justification or rationalization of that decision. In the Recommended Order, the ALJ notes two pieces of evidence that she cites as "most compelling" and "most persuasive": the 2011 drilling and the theory of the seeps presented by Mr. Park. Both of these pieces of evidence occurred well after the 2011 Determination was made and both appear to have been given an extraordinary amount of weight by the ALJ. As of the date of the 2011 Determination, very little exploratory drilling had been done by the company in the area of the mine pit, and what drilling had been performed was of insufficient depth to determine the presence or absence of ground water. Based on the drilling information in the record at the time he made his decision, the Executive Secretary could not reasonably base a decision regarding the extent of ground water resources in the area of the mine on that information. Following the decision, Oil Sands conducted drilling operations throughout the mine in order to determine the extent of the tar sands resources at that site. The company claims that the drilling, which was conducted throughout the summer and fall of 2011, was also intended to identify any ground water present at the site. Although Living Rivers continues to dispute that the 2011 drilling is sufficient to support the determination that no ground water exists above 1500 feet in the area of the mine, in the Recommended Order the ALJ noted that "[t]he most compelling evidence showing the absence of ground water is the USOS 2011 drilling program." Recommended Order at 14. It is clear, based on the fact that the drilling took place a significant amount of time after the Executive 8 Secretary made his 2011 Determination, that the information from this drilling could not have been considered in his decision. Although Oil Sands characterizes this drilling as a search for ground water, this drilling occurred without the aid or input from DWQ personnel. In fact, as of the January 10, 2012 deposition of Mark Novak, DWQ personnel were not familiar with the results of that drilling. Because this drilling was not considered by the Executive Secretary prior to making the 2011 Determination, it should not have been considered by the ALJ when making her Recommended Order. The same situation applies to Mr. Park's testimony at the hearing when he - for the first time - put forth his "theory" that the seeps identified by Oil Sands in its application material were not seeps at all, but rather were the result of precipitation. Although Mr. Park offered no scientific basis for his theory, although this theory does not appear to have been coordinated with DWQ at any point prior to the actual hearing, although this theory directly contradicts evidence in the record submitted by Oil Sands during the permitting process and although the Executive Secretary could not have considered this theory when making his decision on this matter, the ALJ noted that "[t]he most persuasive evidence presented regarding the 'seeps' was the testimony of professional geologist Gerald Park." Recommended Order at 18. Because Mr. Park's theory constitutes nothing more than a post hoc attempt to explain away evidence in the record that Oil Sands and the Executive Secretary find inconvenient, and because it was not considered by the Executive Secretary prior to making the 2011 Determination, it also should not have been considered by the ALJ when drafting the Recommended Order. II. Both the Recommended Order and the Executive Secretary's De Minimis Determination Must Be Rejected Because They Are Founded on a Misinterpretation of the Law. Recommended Order 9 This Board should reject the Recommended Order because it is based on a serious misstatement of the law. Rather than following the directive of the Utah Legislature that "all" waters of the state shall be protected from contamination, the Order wrongly limits the reach of Utah's Water Quality Act and claims that only some of the state's ground water is shielded from pollution. The following explains this fatal error. First, the Water Quality Act is clear - the Act extends to all waters of the State. This is because the Act directs that, without a permit, no one may release a pollutant directly or indirectly into any water of the State. The following provisions from the Water Quality Act establish that the Act protects all waters of the state from pollution: ? "[I]t is unlawful for any person to discharge a pollutant into waters of the state" without a permit. Utah Code Ann. ? 19-5-107(1)(a) (emphasis added). ? The Water Quality Board "shall . . . develop programs for the prevention, control, and abatement of new or existing pollution of the waters of the state[.]" Utah Code Ann. ? 19-5-104(3)(a) (emphasis added). ? The Water Quality Board "shall . . . adopt, modify, or repeal standards of quality of the waters of the state and classify those waters. . . ." Utah Code Ann. ? 19-5-104(3)(b) (emphasis added). ? The Director of the Division of Water Quality "shall . . . develop programs for the prevention, control, and abatement of new or existing pollution of the waters of the state[.]" Utah Code Ann. ? 19-5-106(2)(a) (emphasis added). ? Discharge "means the addition of any pollutant to any waters of the state." Utah Code Ann. ? 19-5-102(7) (emphasis added). ? Discharge permit "means a permit issued to a person who . . . discharges or whose activities would probably result in a discharge of pollutants into the waters of the state[.]" Utah Code Ann. ? 19-5-102(8) (emphasis added). Moreover, under the law, no one may dispose of any wastes in a way that has the potential to harm any water of the State. The following provisions from the Water Quality Act establish that the Act prohibits protects all waters of the state from the disposal of wastes: ? "[I]t is unlawful for any person . . . to place or cause to be placed any wastes in a location where there is probable cause to believe it will cause pollution." Utah Code Ann. ? 19-5107(1)(a) (emphasis added). 10 ? Pollution "means any man-made or man-induced alteration of the chemical, physical, biological, or radiological integrity of any waters of the state[.]" Utah Code Ann. ? 195-102(13) (emphasis added). Second, the Water Quality Act is also clear that waters of the state include all accumulations of underground water. The Water Quality Act defines waters of the state as: ? "all streams, lakes, ponds, marshes, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and all other bodies or accumulations of water, surface and underground, natural or artificial, public or private, which are contained within, flow through, or border upon this state or any portion of the state." Utah Code Ann. ? 19-5-102(23)(a) (emphasis added). Therefore, the Water Quality Act protects and applies to all accumulations of underground water. Specifically, under Utah law, persons must get a permit before discharging any pollutants into any accumulation of underground water. Moreover, persons may not place wastes where there is reason to believe those wastes may alter any accumulation of underground water. In addition, Utah law assigns to the Water Quality Board and the Executive Secretary the duty to develop programs to prevent, control and abate the polluting of all accumulations of underground water in the state. In other words, wherever the Water Quality Act extends its reach to waters of the state, the Act applies to any accumulation of underground water because any accumulation of underground water is contained in the definition of waters of the state. Third, the Water Quality rules also establish that the Water Quality Act's Ground Water Quality Program safeguards all accumulations of underground water in the State. For example, the Executive Secretary relied on a "permit-by-rule" to authorize the Oil Sands mining operations. The rule that allowed that authorization states: [T]he following facilities are considered to be permitted by rule . . . facilities and modifications thereto which the Executive Secretary determines after a review of the application will have a de minimis actual or potential effect on ground water quality. Utah Admin. Rule R317-6-6.2(A)(25) (emphasis added). 11 The Ground Water Quality Protection Program rules go on to define ground water as "subsurface water in the zone of saturation including perched ground water." Utah Admin. Rule R317-6-1.19. However, this definition of ground water must be interpreted consistently with the Legislature's determination that Ground Water Quality Protection Program applies to all accumulations of underground water. In other words, R317-6-1.19's "subsurface water in the zone of saturation, including perched ground water" has to equate to ? 19-5-102(23)(a)'s "any accumulations of underground water." For the same reason, a permit-by-rule under R317-66.2(A)(25) is only appropriate where the Executive Secretary has determined that the proposed facility will have no more than a de minimis actual or potential effect on any accumulation of underground water. Fourth, the Recommended Order is not consistent with the Water Quality Act. The Order does not interpret the R317-6-1.19 definition of ground water ("subsurface water in the zone of saturation, including perched ground water") as protecting ? 19-5-102(23)(a)'s "any accumulations of underground water." Rather, the Order defines ground water first as water "under hydrostatic pressure [which] will flow into a well" and then as ground water contained in "an aquifer." Recommended Order at 31. Aquifer is defined by the Ground Water Quality Protection Program as "a geologic formation . . . that contains sufficiently saturated permeable material to yield usable quantities of water to wells and springs." Utah Admin. Rule R317-6-1.1. Therefore, by defining ground water as water contained in an aquifer, the Order has determined quite wrongly that the Ground Water Quality Protection Program does not protect all accumulations of underground water, but only ground water that issues from an aquifer into wells and springs in a usable quantity. It is highly problematic to assume, as the Order does, that defining ground water as underground water issuing from an aquifer complies with ? 19-512 102(23)(a)'s definition of waters of the state as including all accumulations of underground water. Initially, the Order has severely limited the scope of Ground Water Quality Protection Program - beyond even R317-6-1.19's definition of ground water. That rule has already narrowed the concept of "all accumulations of underground water" by defining ground water as only "subsurface water in the zone of saturation, including perched ground water." The Order goes even further, restricting the definition of ground water by saying ground water must conform to the regulatory definition of an aquifer and therefore must issue into wells and springs in usable quantities. Yet, a look at the plain language of the definition of waters of the state shows that "all accumulations of underground water" is much broader than ground water contained in an aquifer. Moreover, the Order's approach is also in error because there is nothing in the record to suggest that ground water that issues into wells and springs in usable quantities is the same or anything like ? 19-5-102(23)(a)'s "any accumulations of underground water." Thus, the Order is essentially making up the law. For this reason alone, the Order cannot be upheld. The ALJ has "erroneously interpreted . . . the law," Utah Code Ann. ? 63G-4-403(4)(d), meaning that were a court to review the Order, it would be required to overturn the Order's interpretation of ground water and any findings based on that definition. In addition, the Order has also "misapplied the law." Utah Code Ann. ? 63G-4403(4)(d). This is because the Order states the following finding: Substantial evidence in the record supports a finding that ground water has not been located and may be assumed absent in the project area except for a deep regional aquifer. Order at 12. This finding directly conflicts with the statements of Mr. Herbert, Manager of the Ground Water Protect Section, that there is ground water in the area of the mine. 13 This finding also directly conflicts with the repeated statements of Mr. Novak, a DWQ Environmental Scientist, who similarly acknowledges that there is ground water at the site. This shows that the ALJ has determined that the ground water at the mine site does not qualify as issuing from an aquifer. Yet, the plain reading of the definition of waters of the state indicates that the ground water at the mine site qualifies as an accumulation of underground water. The plain reading of the Ground Water Quality Protection Program Rule R317-6-1.19's "subsurface water in the zone of saturation, including perched ground water"2 also indicates that there is ground water at the mine site. After all, Mr. Herbert defined "perched ground water" as follows: [P]erched ground water can be present if there are permeable zones or small areas in the subsurface that are completely encased by less permeable material, which causes the water to be trapped in this small, little zone, which is referred to as being perched ground water. Hrg Tr: 48 (emphasis added). Finally, the Order has also misapplied the law because all of its conclusions - such as the conclusion that the 2011 drilling program established the absence of ground water in the mine site - are necessarily based on the Order's misinterpretation of ground water as issuing from an aquifer. Thus, when the Order states that no ground water is present, what the Order is really saying is that no aquifers, as defined in the Ground Water Quality Protection Program regulations have been located at the mine site. As a result, all of these findings must be discarded. In addition, what the Order does not address is whether there are any accumulations of underground water at the mine site or even if there is any perched ground water at the mine. However, based on the statements of Mr. Herbert and Mr. Novak, as well as evidence discussed elsewhere, there is ample evidence to indicate that there is ground water at the site. The Executive Secretary's Decision 2 This is particularly true when the definition is read so that it is consistent with ? 19-5102(23)(a)'s definition of waters of the state. 14 Likewise, the Executive Secretary's determination that there is no ground water at the mine site above 1,500 to 2000 feet is not valid. As the trial transcript makes clear, the Executive Secretary had no firm understanding of what constitutes ground water for the purposes of its Ground Water Quality Protection Program. Hrg. Tr: 75, 78, 88-89, 164-169. Plainly, without a consistent definition of groundwater, applied consistently to the evidence before him, the Executive Secretary cannot make a defensible decision. This is particularly true because nothing in the record attempts to explain, for example, how the Executive Secretary's various definitions of ground water comply with ? 19-5-102(23)(a) and R317-6-1.19. In addition, rather than being allowed to define ground water as "usable," "meaningful," or more than minimal, the Executive Secretary is required to abide by the law, which extends the protections of the Ground Water Quality Protection Program to "all accumulations of underground water" as well as to "perched ground water." As the Executive Secretary was instead apparently looking for and protecting only "usable," "meaningful," or more than minimal ground water, he was not complying with what the Legislature told him to do, or even with his own rules. The 2011 Drilling and Field Visits For the reasons explained above, the 2011 drilling is not valid. Oil Sands and its consultants were not looking for "any accumulations of underground water" or for even "perched ground water" as required under ? 19-5-102(23)(a) and R317-6-1.19. Rather, according to Oil Sands, it too was looking for ground water in an aquifer. After all, it was Oil Sands that originally put forward the definition of "zone of saturation" that the ALJ ultimately adopted. HE 312. Therefore, all the testimony about instructions to the crew and the ability of the 2011 drilling to locate ground water, e.g. Order at 14-15, is also based on Oil Sands' faulty interpretation of the law and must be discounted. 15 III. Both the Recommended Order and the De Minimis Determination Must Be Rejected Because They Fail to Address the Possibility that the Ground Water at the Mine Site is Perched or is Seasonal. As established already, the Order and the de minimis determination are invalid because each relies on an incorrect interpretation of the law. Moreover, the evidence on which each depends was evaluated based on a misapplication of the law to the facts. As a result, the factual findings that purport to support the de minimis determination must be reject. However, there is a further, but related flaw in the Order and the 2011 Determination. Both ignore the admission that smaller zones of perched ground water exist at the site and that this ground water may only periodically reach the surface in the form of seeps and springs. For example: ? The NOI and the Demonstration state and both Mr. Herbert and Mr. Novak agree that there is ground water at the mine site and evidence in the record that ground water exists has not been contradicted by subsequent evidence. Hrg Tr: 165, 119 - 120, 129, 170, 173, 175; see also, IR - 000006, 75, 80, 82, 83, 127; HE 203, Exhibit A; Hrg Tr: 256. Mr. Herbert attempts to discount this relevance of ground water at the mine site by stating that the ground water is "minimal," Hrg. Tr: 173, that it must be "usable" or that it must be subject to monitoring to be protected by the Ground Water Quality Protection Program. Hrg. Tr: 174. As established above, these assertions have no basis in law. But, in addition, they have no basis in fact. This is because, ? According to Mr. Herbert, even the minimal groundwater at the mine site qualifies as an accumulation of underground water and therefore is protected by the Ground Water Quality Protection Program. Hrg. Tr: 170 ("I did not deny that there may be ground water at that site, accumulations, as defined in the water - the Ground Water Protection Regulations."). ? In addition, according to the record, the ground water at the mine site can be monitored. This is because o The NOI and the Demonstration state that the perched ground water at the mine site is expressed on the surface as springs and seeps. IR - 000006 & 000075; see also id. at 80, 82, 83, 127; HE 203, Exhibit A. o All parties agree that ground water that is expressed in a seep or spring must exist in a zone of saturation. Hrg. Tr: 106 - 107, 144, 256. 16 o As Oil Sands admits and others confirm, "flowing seeps" and ephemeral ground water can be monitored. Hrg. Tr: 375; see also Hrg. Tr: 266. ? In addition, even assuming (as Mr. Herbert maintains on occasion) that ground water must be usable to be protected (that the ground water must exist in an aquifer), Mr. Herbert admits that: o ground water usable by wildlife qualifies for protection, Hrg. Tr: 88; o ground water does not have to be immediately available to be usable, id.; o ground water residing in the zone of saturation for some time still qualifies for protection, id.; o ground water in a zone of saturation the size of a bucket qualifies as usable. Hrg. Tr: 89. The failure to acknowledge the presence of perched ground water at the mine site - which is protected by the Ground Water Quality Protection Program - is particularly important because neither the 2011 drilling nor the haphazard visits to the site do anything to counter evidence that this type of ground water is found at the mine site. This is because: ? The ground water in the area of the mine could be ephemeral in nature. Hrg. Tr: 256; HE 203, Exhibit A. This means that site visits and drilling must occur periodically through the year or timed to coincide with the time of year when surface expressions of ground water are the most likely. o However, the 2011 drilling occurred only during the summer and fall. Hrg. Tr: 37475. o DWQ staff visited the site only once on June 24, 2008 and the record is silent about the conditions of the site that day, Hrg. Tr: 161, 162 - 163, or even where on the site the team searched. Hrg. Tr: 163 - 164, 137 - 138. o The early drilling references in the Demonstration only reached to an average depth of 150 feet and involved only 6 wells in the area of the mine. IR - 000075. o Neither the Executive Secretary nor Oil Sands conducted a seep and spring survey to locate ground water discharge in the area of the mine. o Neither the Executive Secretary nor Oil Sands undertook the simple method for locating ground water at the mine site. See Hrg. Tr: 266 (method described). ? It is unlikely that the 2011 drilling would locate perched aquifers and almost guaranteed that the initial exploratory drilling would not locate any perched aquifers at the mine site. This is because: o The Executive Secretary agrees that perched ground water can exist in a small zone. Hrg. Tr: 89, 98, 174. o As Mr. Herbert admits, hundreds of wells could be drilled at the mine site, come up dry, and this exercise would still not determine the presence or the extent of perched aquifers. Hrg. Tr: 96 - 97. o The spacing within the mine site for the 2011 drilling was 400 feet. Hrg. Tr: 185 - 186. 17 o It is possible that a perched aquifer the size of a football field could exist at the mine site and not be detected by the 2011 drilling. Hrg. Tr: 186. o The drilling program did use water, Hrg. Tr: 349-50, which would mask any discovery of perched ground water. IV. Both the Recommended Order and the Executive Secretary's De Minimis Determination Must Be Rejected Because They Are Based on Faulty Tests and the Wrong Tests. Incorrect Lab Tests To determine if the disposal of millions of tons of wastes at the PR Spring mine site could be a potential source of ground water contamination, the Executive Secretary asked Oil Sands to conduct various laboratory tests. IR - 000012-15, 395, 397 & 398-99. However, now all sides agree that the right tests for addressing contamination were not performed and the tests that were performed are not particularly relevant. For example, Mr. Novak stated: ? The method used to test for residual hydrocarbons or process chemicals was incorrect: "TCLP is not appropriate in this case...I would wish we had better SP[LP]. That is appropriate, and I wish we had better results." Hrg. Tr: 196; ? "What I wanted - and I'm not sure how well they did it - I wanted a synthetic precipitation leaching procedure run[.]" When next asked, "[s]o this test has results for TRPH. Were those meaningful to you at all[,]" he answered "No." Hrg. Tr: 199; ? "[S]ome parameters were run on [the tailings, but] I'm not totally satisfied with that[.]" Hrg. Tr: 204; ? That, regarding tests performed for TDS: "They were not run properly...they got all confused[.]" Hrg Tr: 206 -207. Both Mr. Handl and Dr. Johnson agree that there are tests that should have been, but were not run on the process wastes to determine the threat of contamination. Handl Testimony at 88,- 90; Johnson Initial Testimony at 21; see also Exhibit A at 4 ("These analyses demand that simple and inexpensive vaporization tests and leach tests be performed on the processed sands as a minimum requirement for permitting these operations."). Despite these telling admissions, the Order concludes that the waste materials would not constitute a source of contamination. Order at 19-21. However, such a finding cannot be 18 sustained when the evidence in the record states that the wrong tests were run. If the appropriate tests were not done, there is simply no evidence in the record to support the conclusion that the tailings are not a threat to water quality. Future Tests The Order appears to bypass the issue of the wrong tests by pointing to future testing to be undertaken by Oil Sands as a justification for the de minimis determination. Order at 22 & 35. This approach is flawed for several reasons. ? The permit-by-rule regulations require that a de minimis determination be made on the basis of the application and the results of these future tests are not in the application. Utah Admin. Code R317-6-6.2(A)(25). ? The Executive Secretary's decision must be supported by the record and the results of these future tests are not in the record. Utah Code Ann. ? 63G-4-403(4)(d). ? Postponing critical testing to some future date prevents both the public and this Board from weighing in on this important matter. ? The testing can and should be done now. Oil Sands currently has the Asphalt Ridge proxy material needed for that testing, as evidenced by the fact that the company continues to conduct a series of runs and analysis of those tailings as part of its process improvement. Hrg. Tr: 342. Faulty Tests As just established, the lab tests that were performed to address possible contamination from the tailings were the wrong tests. To make matters worse, the tests that were run and that purport to serve as the basis for the de minimis determination violated standard procedures and were not meaningful. IR - 000014-15. As these flawed lab tests are the only ones in the record, the record cannot support the Executive Secretary's de minimis determination. The Demonstration acknowledges that lab tests did not conform to standard procedures in the following ways: ? Volatile and semi-volatile organic analyses were compromised by air space in sampling jars, holding times getting the samples to the lab were exceeded, and holding times at the lab were exceeded, IR - 000014; 19 ? Reporting limits for volatiles and semi-volatiles were generally above the applicable ground water standard, id.; ? Certain metal analyses could not be compared against ground water standards because the tests were not sensitive enough to detect these metals in small enough quantities to determine if the samples exceeded the relevant standards. IR - 000015; and, ? Analysis for TDS requested by the Executive Secretary could not be used because the test was run using inappropriate methods. Id. Because of these failures to follow test protocols and proper methods, the Demonstration concludes that: ? "[I]t is possible that greater concentrations [volatile and semi-volatile organics] than those measured by the lab were actually present in the samples, IR - 000014; ? The concentrations of arsenic, cadmium, mercury and selenium could be greater than the ground water quality standards for those compounds, IR - 000015; ? Although TDS is "a concern" for ground water, and that ground water in Utah is classified and protected based on TDS levels, "site-specific TDS data for ground water underlying the project area are not available," and "[t]he expected TDS of leachate that might develop from the processed oil sands is not known." IR - 000015. These admissions alone establish that the lab tests in the record do not support the 2011 Determination. As the Demonstration admits, because the tests were not performed properly, they are not meaningful. Moreover, the Ground Water Quality Protect Program rules prohibit reliance on lab tests that were not performed in accordance with standard procedures. Utah Admin. Rule R317-6-6.12 (All laboratory analysis of samples collected to determine compliance with these regulations shall be performed in accordance with standard procedures") (emphasis added). Thus, most of the lab tests the Executive Secretary asked Oil Sands to run cannot, by rule, serve as a basis for the finding that the PR Spring processed fines are not a threat to ground water.3 Therefore, the finding is not supported by the record and must be rejected. 3 The Executive Secretary ignored tests that produced alarming results - or at a minimum, results that required explanation or analysis. The Demonstration reports very high levels of petroleum hydrocarbons, which, in the case of processed fines, exceed or are extremely close to the Tier I Screening Criteria that the State uses to require cleanup of petroleum-contaminated soils. IR - 000014-15. 20 Respectfully submitted on this September 12, 2012. ROB DUBUC JORO WALKER Attorneys for Living Rivers CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 12th day of September, 2012, a true and correct copy of the foregoing Response to Recommended Order was served via e-mail, as follows: Walter L. Baker, PE Executive Secretary Water Quality Board 195 North 1950 West PO Box 144870 Salt Lake City, UT 84114-4870 wbaker@utah.gov Paul McConkie Assistant Attorney General PO Box 140873 160 East 300 South Salt Lake City, UT 84114-0873 pmcconkie@utah.gov Counsel for the Executive Secretary Sandra K. Allen Administrative Law Judge skallen@utah.gov Christopher R. Hogle A. John Davis M. Benjamin Machlis Holland & Hart 222 South Main Street, Ste 2200 Salt Lake City, UT 84101 crhogle@hollandhart.com ajdavis@hollandhart.com mbmachlis@hollandhart.com DEQ Administrative Proceedings Record Officer 160 East 300 South, 5th Floor Salt Lake City UT 84111 (via email at deqapro@utah.gov) Kimberlee McKewan Assistant Attorney General P.O. Box 144840 195 North 1950 West, 1st Floor Salt Lake City, UT 84114-4840 kmcewan@utah.gov Rob Dubuc 21