(602) 253-8633 Fax: (602) - Arizona Sierra Club
(602) 253-8633 Fax: (602) - Arizona Sierra Club
(602) 253-8633 Fax: (602) - Arizona Sierra Club
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Grand Canyon Chapter ● 202 E. McDowell Rd, Ste 277 ● Phoenix, AZ 85004<br />
Phone: (<strong>602</strong>) <strong>253</strong>-<strong>8633</strong> <strong>Fax</strong>: (<strong>602</strong>) 258-6533 Email: grand.canyon.chapter@sierraclub.org<br />
January 22, 2013<br />
Mr. Richard Mendolia<br />
Project Manager<br />
Water Quality Division–Groundwater Section<br />
<strong>Arizona</strong> Department of Environmental Quality<br />
1110 W. Washington St., MC5415B-3<br />
Phoenix, <strong>Arizona</strong> 85007<br />
Re: Comments on Temporary Individual Aquifer Protection Permit<br />
No. P-106360 for the Florence Copper Project, Production Test Facility<br />
Dear Mr. Mendolia:<br />
The Grand Canyon Chapter of the <strong>Sierra</strong> <strong>Club</strong> is pleased to have the opportunity to comment<br />
on the issuance of a temporary individual Aquifer Protection Permit (APP) No. P-106360 for<br />
the Florence Copper Project Production Test Facility. The <strong>Arizona</strong> Department of<br />
Environmental Quality (ADEQ) issued a “temporary individual APP” to the permit applicant,<br />
Curis Resources, on September 28, 2012. Public notice of the ADEQ decision to issue the<br />
temporary individual APP was published on October 15, 2012. ADEQ extended the public<br />
comment period to January 22, 2013 to give members of the public time to submit public<br />
comments. This comment letter was hand-delivered to ADEQ on January 22, 2013 and so<br />
our comments are timely and submitted by the January 22, 2013 deadline.<br />
ADEQ does not have statutory authority to issue a temporary individual APP<br />
to Curis Resources<br />
ADEQ does not have legal authority to issue a “temporary individual APP” to Curis Resources<br />
for the proposed Florence Copper Project. There is nothing in the Aquifer Protection Permit<br />
statutes providing legal authority for the issuance of a temporary individual APP. While the<br />
APP statutes contain references to “individual permits,” “general permits,” “agricultural<br />
general permits,” “area wide permits,” and “groundwater quality protection permits,” there is<br />
no mention of a “temporary permit” or a “temporary individual APP,” in the statutes<br />
governing the APP program found in Title 49, Chapter 2, Article 3.<br />
The APP statutory scheme does not contemplate issuance of temporary Aquifer Protection<br />
Permits like the one issued here. A.R.S.§49-241 prescribes statutory requirements for APPs<br />
but does not include any mention of temporary individual APPs. A.R.S. §49-242 prescribes<br />
procedural requirements for issuing individual APPs but does not contain procedural<br />
requirements for issuing temporary permits. There is no mention of temporary individual<br />
permits in A.R.S. §49-243, which prescribes information requirements for permit applications<br />
and the statutory criteria for individual APPs. Finally, there is no mention of fees for<br />
temporary APPs. In fact, there is no mention of temporary individual APP in any of the<br />
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statutes in Title 49, Chapter 2, Article 3, which govern the Aquifer Protection Permit<br />
program.<br />
<strong>Sierra</strong> <strong>Club</strong> notes that ADEQ did not cite the specific statutory authority that ADEQ relied<br />
upon to issue Temporary individual APP No. P-106360 in any of the permit documentation<br />
made available for public comment, as required by law. The Public Notice states that ADEQ<br />
issued the temporary individual APP pursuant to the agency’s administrative rules in Title 18,<br />
Chapter 9, Article 1 of the <strong>Arizona</strong> Administrative Code. The Fact Sheet states that ADEQ<br />
issued the temporary individual APP pursuant to A.A.C. R18-9-A210(E). The Fact Sheet does<br />
not contain a citation to specific statutory authority that authorizes issuance of temporary<br />
individual APPs. Finally, Section One of Temporary Aquifer Protection Permit No. P-106360,<br />
which addresses authorization for Temporary Individual APP No P-106360, contains only<br />
generic references to the APP statutes and ADEQ administrative rules. Section 1.0 of the<br />
temporary permit states, in relevant part<br />
In compliance with the provisions of <strong>Arizona</strong> Revised Statutes (A.R.S. Title 49,<br />
Chapter 2, Articles 1, 2, and 3, <strong>Arizona</strong> Administrative Code (A.A.C.) Title 18, Chapter<br />
9, Articles 1 and 2, A.A.C. Title 18, Chapter 11, Article 4 and amendments thereto,<br />
and the conditions set forth in this permit, the <strong>Arizona</strong> Department of Environmental<br />
Quality (ADEQ) hereby authorizes Curis Resources (<strong>Arizona</strong>) Inc. to operate the<br />
Florence Copper Project-Pilot Test Facility....”<br />
[See Temporary Protection Permit No. P-106360, Section 1.0 Authorization,<br />
P. 1 of 42].<br />
A generic reference to all of the statutes in Title 49, Chapter 2, Articles 1, 2, and 3 for legal<br />
authority to issue a temporary individual APP is insufficient. ADEQ issuance of a temporary<br />
permit in the absence of specific legal authority is illegal so the temporary permit must be<br />
revoked.<br />
Temporary Individual Permit No. P-106360 does not comply with the<br />
requirements of A.R.S. §49-251, the statute authorizing temporary<br />
emergency waivers. A.R.S.§49-251 does not provide legal authority to issue<br />
this temporary permit.<br />
The only state law in the APP statutes that is even remotely similar to the concept of a<br />
“temporary individual APP” is A.R.S. §49-251, the <strong>Arizona</strong> Revised Statute that authorizes<br />
temporary emergency waivers under certain limited conditions. A.R.S. §49-251(A) provides<br />
legal authority for ADEQ to issue a “temporary emergency waiver” from the requirements to<br />
obtain an APP or from any applicable permit requirement or with a surface or aquifer water<br />
quality standard or discharge limitation provided the issuance of a temporary emergency<br />
waiver will not endanger human health or welfare and the Director of ADEQ makes one of<br />
the two findings.<br />
The Director must find either:<br />
1. “That an emergency of such severity exists that water supplies for domestic uses will<br />
be inadequate to meet demand unless the facility is able to temporarily exceed one or<br />
more water quality standards or discharge limitations by its discharge into waters of<br />
the state” or<br />
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2. That there has been a breakdown of equipment or upset of operations resulting in<br />
discharge to waters of the state in excess of one or more water quality standards or<br />
discharge limitations, and both of the following apply:<br />
(a) The breakdown or upset was beyond the control of the facility owner or<br />
operator and the facility was being operated in compliance with this chapter<br />
before the discharge.<br />
(b) The breakdown or upset will be corrected in a reasonable amount of time.”<br />
It is clear that Temporary Individual APP No. P-106360 is not consistent with the<br />
requirements for a temporary emergency waiver authorized by A.R.S.§49-251 .None of the<br />
requirements of A.R.S. §49-251 are met.<br />
First, there is no emergency threatening the adequacy of water supplies. Second, there has<br />
been no breakdown of existing equipment or upset of facility operations to justify ADEQ<br />
issuance of a temporary emergency waiver. Here, ADEQ is proposing a temporary individual<br />
APP to authorize discharges from an in-situ mining pilot project. The purpose of the<br />
temporary individual APP stated in the public notice is “…to allow Curis to conduct a 14-<br />
month pilot test for in-situ recovery in order to develop data needed to support potential fullscale<br />
commercial in-situ mining operations for the Florence Copper Project.” [See paragraph<br />
3 of the Public Notice]. There is no emergency or upset of any kind so the “temporary<br />
individual APP” cannot have been authorized by A.R.S. §49-251.<br />
Finally, a temporary emergency waiver issued pursuant to A.R.S. §49-251 can remain in<br />
effect only “as long as necessary to accommodate the emergency, but in no event longer<br />
than 90 days” [See A.R.S.§49-251(E)].The term of the temporary individual APP is one year<br />
with an option for renewal for a second year. Since these permit terms are inconsistent with<br />
the 90-day term prescribed by statute, ADEQ issuance of Temporary Individual Permit<br />
No. P-106360 cannot have been authorized by A.R.S. §49-251.<br />
ADEQ issuance of this permit is illegal because ADEQ does not have statutory authority to<br />
issue a temporary individual APP. Until ADEQ cites the statute that provides the agency with<br />
authority to issue a temporary individual APP, then it must be considered illegal and void.<br />
ADEQ must revoke Temporary Individual Aquifer Protection Permit No. No. P-106360 and<br />
should repeal A.A.C. R18-9-A210(E) to prevent issuance of illegal temporary permits in the<br />
future.<br />
ADEQ cannot issue an individual APP to Curis Resources for the Florence<br />
Copper Project because the Florence Copper Project does not comply with<br />
applicable municipal zoning ordinances and regulations<br />
A.R.S. §49-243(O) states that the Director of ADEQ:<br />
“…shall require an applicant for an individual permit to submit evidence that the<br />
discharging facility complies with applicable municipal or county ordinances and<br />
regulations. The director shall not issue the permit unless it appears from the<br />
evidence submitted by the applicant that the facility complies with the applicable<br />
zoning ordinances and regulations.” [emphasis added]<br />
The Fact Sheet for the Temporary Individual Permit fails to discuss relevant zoning issues or<br />
the specific requirements of A.R.S. §49-243(O) which requires that the applicant for an<br />
individual APP provide evidence of compliance with local municipal or county zoning<br />
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ordinances and regulations. The Fact Sheet states only that “mining activity of greater than<br />
five contiguous acres is exempt from zoning requirements pursuant to A.R.S. 11-812.” The<br />
Fact Sheet is completely silent with regard to the larger zoning issues and the specific<br />
statutory requirements of A.R.S. §49-243(O), which require compliance with local zoning<br />
ordinances.<br />
ADEQ’s failure to address the issue of the applicant’s compliance with local zoning<br />
ordinances before issuing a temporary individual permit is a violation of A.R.S. §49-243(O).<br />
ADEQ must have been aware of the applicant’s lack of compliance with the requirements of<br />
A.R.S. §49-243(O). The Town of Florence Planning and Zoning staff report for the Florence<br />
Copper Project is readily available on-line. The entire Planning and Zoning Staff Report for<br />
the Florence Copper Project is attached to this comment letter for your information. Major<br />
points from the staff report:<br />
1. Curis Resources requested a Major General Plan Amendment to the Town of<br />
Florence 2020 General Plan in conjunction with the proposed Florence Copper<br />
Project to change the land use designation from Master Planned Community to<br />
Employment / Light Industrial.<br />
2. The staff reported an unfavorable recommendation to the Mayor and Town Council<br />
on the request.<br />
3. The planning staff found that the proposed major general plan amendment to<br />
change land use designations for the Curis Resources pilot project “will not<br />
enhance or support the goals, objectives, and strategies set forth in the Town’s<br />
2020 General Plan.”<br />
4. The proposed general plan amendment to change zoning for the Curis pilot project<br />
“fails to consider the implications of an isolated and dramatic change in land use<br />
within a Master Planned Community and within the immediate vicinity of the<br />
Anthem at Merrill Ranch Master Planned Community.”<br />
5. “The proposed General Plan Amendment and proposed development on the subject<br />
site, though implied as interim by the applicant, would not be considered interim if<br />
approved by the Town. This Amendment creates permanent consequences in how<br />
the site could be developed now and in the future and little foresight has been paid<br />
to such serious short and long-term potential ramifications….<br />
On November 7, 2011, the Town of Florence, by a unanimous vote of the Town Council<br />
(7-0), denied Curis Resources request for a major general plan amendment. On December<br />
19, 2011, the Florence Town Council voted 6-1 to approve Resolution No. 1324-11 urging<br />
the State Land Department, <strong>Arizona</strong> Department of Environmental Quality, and U.S.<br />
Environmental Protection Agency to reject the Florence Copper Project. This resolution urged<br />
the other governmental agencies not to violate the Town’s decision that the project is<br />
unsuitable for the area, as reflected by the unanimous 7 -0 vote to deny Curis zoning<br />
approval on November 7, 2011.<br />
It is abundantly clear that Curis Resources did not submit evidence demonstrating that the<br />
Florence Copper Project complies with local zoning ordinances. On the contrary, the<br />
applicant’s request for a change in zoning to allow the pilot project to go forward was denied<br />
and the Florence Town Council has expressed its almost unanimous opposition to the project<br />
by its 6-1 approval of Resolution No. 1324-11. Under A.R.S. §49-243(O), the Director of<br />
ADEQ cannot legally issue even a temporary individual APP to Curis Resources for the<br />
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Florence Copper Project. For this reason, ADEQ must revoke Temporary Individual Permit<br />
No. P-106360.<br />
I look forward to receiving ADEQ’s responses to our comments as well as notification of the<br />
ADEQ decision on the issuance of temporary individual APPs as issued on September 28,<br />
2012. I request that ADEQ send the responsiveness summary and notice of the ADEQ<br />
decision to me by certified mail at the address below. I understand that I have the right to<br />
appeal the ADEQ decision to issue, modify, or revoke the individual temporary APP for the<br />
Florence Copper Project Production Test Facility pursuant to A.R.S. §41-1092.03(B). I am<br />
requesting notice of the ADEQ decision by certified mail so I can preserve my right to file a<br />
timely administrative appeal.<br />
Thank you for considering our comments.<br />
Sincerely,<br />
Steve Pawlowski<br />
<strong>Arizona</strong> Water Sentinels Coordinator<br />
<strong>Sierra</strong> <strong>Club</strong> –Grand Canyon Chapter<br />
202 E. McDowell Road, Suite 277<br />
Phoenix, <strong>Arizona</strong> 85004-4536<br />
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