Memorandum to the Docket

Subject: Tele-conference with David Kimball, lawyer for
Freeport-McMoran,   pertaining to the Definition of Solid Waste proposed
rule

Date: November 9, 2007

Participants: Charlotte Mooney, Jim O’Leary and David Kimball

A teleconference was held with David Kimball, per his request, to
discuss several issues pertaining to EPA’s proposed Definition of
Solid Waste rule that could potentially impact his client,
Freeport-McMoran. More specifically, his issues of concern were:

1. What is the regulatory status of weak acids (that are applied to dump
leach operations) to precipitate a copper raffinate for eventual copper
recovery? Characteristic by-product or sludge vs. manufacturing?

- Freeport’s concern is that their operations may violate Legitimacy
Criteria #3; i.e., the need to achieve containment with non-analogous
materials. Freeport seeks clarity as to what containment means and what
non-analogous materials mean.           

2. Is use-constituting disposal (UCD) occurring as a result of the weak
acids being applied to the heap leach? What does UCD mean with respect
to mining operations?

- Freeport concerned EPA believes land-based units (non-earthen
structures such as tanks and containers) do not contain materials. In
past, Freeport did not worry about containment. Freeport believes
EPA’s position is that land-based units always leak.; i.e., don’t
contain. Therefore, legitimacy criterion is a change from past. 

3. Is use of weak acid on dump leach operations legitimate recycling?
What is a non-analogous weak acid? 

- Freeport believes the weak acid provides a useful contribution to dump
leach operations and legitimacy is not an issue.

4. Does containment + control of the heap leach operations and other
units storing the raffinate = containment as defined by DSW rule? What
is containment for the mining industry? Is mining a unique industry that
should be separated out of the DSW rule? 

- Freeport believes they have monitoring and containment processes in
place to control any release, if one should occur.

5. Is Freeport’s operation an ongoing production process? Waste
management process? If production process, does EPA’s regulatory
determination process derive that result?

- Freeport believes their operation is one integrated production
process. 

