(602) 253-8633 Fax: (602) - Arizona Sierra Club

Grand Canyon Chapter ● 202 E. McDowell Rd, Ste 277 ● Phoenix, AZ 85004
Phone: (602) 253-8633 Fax: (602) 258-6533 Email: grand.canyon.chapter@sierraclub.org
January 22, 2013
Mr. Richard Mendolia
Project Manager
Water Quality Division–Groundwater Section
Arizona Department of Environmental Quality
1110 W. Washington St., MC5415B-3
Phoenix, Arizona 85007
Re: Comments on Temporary Individual Aquifer Protection Permit
No. P-106360 for the Florence Copper Project, Production Test Facility
Dear Mr. Mendolia:
The Grand Canyon Chapter of the Sierra Club is pleased to have the opportunity to comment
on the issuance of a temporary individual Aquifer Protection Permit (APP) No. P-106360 for
the Florence Copper Project Production Test Facility. The Arizona Department of
Environmental Quality (ADEQ) issued a “temporary individual APP” to the permit applicant,
Curis Resources, on September 28, 2012. Public notice of the ADEQ decision to issue the
temporary individual APP was published on October 15, 2012. ADEQ extended the public
comment period to January 22, 2013 to give members of the public time to submit public
comments. This comment letter was hand-delivered to ADEQ on January 22, 2013 and so
our comments are timely and submitted by the January 22, 2013 deadline.
ADEQ does not have statutory authority to issue a temporary individual APP
to Curis Resources
ADEQ does not have legal authority to issue a “temporary individual APP” to Curis Resources
for the proposed Florence Copper Project. There is nothing in the Aquifer Protection Permit
statutes providing legal authority for the issuance of a temporary individual APP. While the
APP statutes contain references to “individual permits,” “general permits,” “agricultural
general permits,” “area wide permits,” and “groundwater quality protection permits,” there is
no mention of a “temporary permit” or a “temporary individual APP,” in the statutes
governing the APP program found in Title 49, Chapter 2, Article 3.
The APP statutory scheme does not contemplate issuance of temporary Aquifer Protection
Permits like the one issued here. A.R.S.§49-241 prescribes statutory requirements for APPs
but does not include any mention of temporary individual APPs. A.R.S. §49-242 prescribes
procedural requirements for issuing individual APPs but does not contain procedural
requirements for issuing temporary permits. There is no mention of temporary individual
permits in A.R.S. §49-243, which prescribes information requirements for permit applications
and the statutory criteria for individual APPs. Finally, there is no mention of fees for
temporary APPs. In fact, there is no mention of temporary individual APP in any of the
Printed on Recycled Paper

statutes in Title 49, Chapter 2, Article 3, which govern the Aquifer Protection Permit
program.
Sierra Club notes that ADEQ did not cite the specific statutory authority that ADEQ relied
upon to issue Temporary individual APP No. P-106360 in any of the permit documentation
made available for public comment, as required by law. The Public Notice states that ADEQ
issued the temporary individual APP pursuant to the agency’s administrative rules in Title 18,
Chapter 9, Article 1 of the Arizona Administrative Code. The Fact Sheet states that ADEQ
issued the temporary individual APP pursuant to A.A.C. R18-9-A210(E). The Fact Sheet does
not contain a citation to specific statutory authority that authorizes issuance of temporary
individual APPs. Finally, Section One of Temporary Aquifer Protection Permit No. P-106360,
which addresses authorization for Temporary Individual APP No P-106360, contains only
generic references to the APP statutes and ADEQ administrative rules. Section 1.0 of the
temporary permit states, in relevant part
In compliance with the provisions of Arizona Revised Statutes (A.R.S. Title 49,
Chapter 2, Articles 1, 2, and 3, Arizona Administrative Code (A.A.C.) Title 18, Chapter
9, Articles 1 and 2, A.A.C. Title 18, Chapter 11, Article 4 and amendments thereto,
and the conditions set forth in this permit, the Arizona Department of Environmental
Quality (ADEQ) hereby authorizes Curis Resources (Arizona) Inc. to operate the
Florence Copper Project-Pilot Test Facility....”
[See Temporary Protection Permit No. P-106360, Section 1.0 Authorization,
P. 1 of 42].
A generic reference to all of the statutes in Title 49, Chapter 2, Articles 1, 2, and 3 for legal
authority to issue a temporary individual APP is insufficient. ADEQ issuance of a temporary
permit in the absence of specific legal authority is illegal so the temporary permit must be
revoked.
Temporary Individual Permit No. P-106360 does not comply with the
requirements of A.R.S. §49-251, the statute authorizing temporary
emergency waivers. A.R.S.§49-251 does not provide legal authority to issue
this temporary permit.
The only state law in the APP statutes that is even remotely similar to the concept of a
“temporary individual APP” is A.R.S. §49-251, the Arizona Revised Statute that authorizes
temporary emergency waivers under certain limited conditions. A.R.S. §49-251(A) provides
legal authority for ADEQ to issue a “temporary emergency waiver” from the requirements to
obtain an APP or from any applicable permit requirement or with a surface or aquifer water
quality standard or discharge limitation provided the issuance of a temporary emergency
waiver will not endanger human health or welfare and the Director of ADEQ makes one of
the two findings.
The Director must find either:
1. “That an emergency of such severity exists that water supplies for domestic uses will
be inadequate to meet demand unless the facility is able to temporarily exceed one or
more water quality standards or discharge limitations by its discharge into waters of
the state” or
Printed on Recycled Paper

2. That there has been a breakdown of equipment or upset of operations resulting in
discharge to waters of the state in excess of one or more water quality standards or
discharge limitations, and both of the following apply:
(a) The breakdown or upset was beyond the control of the facility owner or
operator and the facility was being operated in compliance with this chapter
before the discharge.
(b) The breakdown or upset will be corrected in a reasonable amount of time.”
It is clear that Temporary Individual APP No. P-106360 is not consistent with the
requirements for a temporary emergency waiver authorized by A.R.S.§49-251 .None of the
requirements of A.R.S. §49-251 are met.
First, there is no emergency threatening the adequacy of water supplies. Second, there has
been no breakdown of existing equipment or upset of facility operations to justify ADEQ
issuance of a temporary emergency waiver. Here, ADEQ is proposing a temporary individual
APP to authorize discharges from an in-situ mining pilot project. The purpose of the
temporary individual APP stated in the public notice is “…to allow Curis to conduct a 14-
month pilot test for in-situ recovery in order to develop data needed to support potential fullscale
commercial in-situ mining operations for the Florence Copper Project.” [See paragraph
3 of the Public Notice]. There is no emergency or upset of any kind so the “temporary
individual APP” cannot have been authorized by A.R.S. §49-251.
Finally, a temporary emergency waiver issued pursuant to A.R.S. §49-251 can remain in
effect only “as long as necessary to accommodate the emergency, but in no event longer
than 90 days” [See A.R.S.§49-251(E)].The term of the temporary individual APP is one year
with an option for renewal for a second year. Since these permit terms are inconsistent with
the 90-day term prescribed by statute, ADEQ issuance of Temporary Individual Permit
No. P-106360 cannot have been authorized by A.R.S. §49-251.
ADEQ issuance of this permit is illegal because ADEQ does not have statutory authority to
issue a temporary individual APP. Until ADEQ cites the statute that provides the agency with
authority to issue a temporary individual APP, then it must be considered illegal and void.
ADEQ must revoke Temporary Individual Aquifer Protection Permit No. No. P-106360 and
should repeal A.A.C. R18-9-A210(E) to prevent issuance of illegal temporary permits in the
future.
ADEQ cannot issue an individual APP to Curis Resources for the Florence
Copper Project because the Florence Copper Project does not comply with
applicable municipal zoning ordinances and regulations
A.R.S. §49-243(O) states that the Director of ADEQ:
“…shall require an applicant for an individual permit to submit evidence that the
discharging facility complies with applicable municipal or county ordinances and
regulations. The director shall not issue the permit unless it appears from the
evidence submitted by the applicant that the facility complies with the applicable
zoning ordinances and regulations.” [emphasis added]
The Fact Sheet for the Temporary Individual Permit fails to discuss relevant zoning issues or
the specific requirements of A.R.S. §49-243(O) which requires that the applicant for an
individual APP provide evidence of compliance with local municipal or county zoning
Printed on Recycled Paper

ordinances and regulations. The Fact Sheet states only that “mining activity of greater than
five contiguous acres is exempt from zoning requirements pursuant to A.R.S. 11-812.” The
Fact Sheet is completely silent with regard to the larger zoning issues and the specific
statutory requirements of A.R.S. §49-243(O), which require compliance with local zoning
ordinances.
ADEQ’s failure to address the issue of the applicant’s compliance with local zoning
ordinances before issuing a temporary individual permit is a violation of A.R.S. §49-243(O).
ADEQ must have been aware of the applicant’s lack of compliance with the requirements of
A.R.S. §49-243(O). The Town of Florence Planning and Zoning staff report for the Florence
Copper Project is readily available on-line. The entire Planning and Zoning Staff Report for
the Florence Copper Project is attached to this comment letter for your information. Major
points from the staff report:
1. Curis Resources requested a Major General Plan Amendment to the Town of
Florence 2020 General Plan in conjunction with the proposed Florence Copper
Project to change the land use designation from Master Planned Community to
Employment / Light Industrial.
2. The staff reported an unfavorable recommendation to the Mayor and Town Council
on the request.
3. The planning staff found that the proposed major general plan amendment to
change land use designations for the Curis Resources pilot project “will not
enhance or support the goals, objectives, and strategies set forth in the Town’s
2020 General Plan.”
4. The proposed general plan amendment to change zoning for the Curis pilot project
“fails to consider the implications of an isolated and dramatic change in land use
within a Master Planned Community and within the immediate vicinity of the
Anthem at Merrill Ranch Master Planned Community.”
5. “The proposed General Plan Amendment and proposed development on the subject
site, though implied as interim by the applicant, would not be considered interim if
approved by the Town. This Amendment creates permanent consequences in how
the site could be developed now and in the future and little foresight has been paid
to such serious short and long-term potential ramifications….
On November 7, 2011, the Town of Florence, by a unanimous vote of the Town Council
(7-0), denied Curis Resources request for a major general plan amendment. On December
19, 2011, the Florence Town Council voted 6-1 to approve Resolution No. 1324-11 urging
the State Land Department, Arizona Department of Environmental Quality, and U.S.
Environmental Protection Agency to reject the Florence Copper Project. This resolution urged
the other governmental agencies not to violate the Town’s decision that the project is
unsuitable for the area, as reflected by the unanimous 7 -0 vote to deny Curis zoning
approval on November 7, 2011.
It is abundantly clear that Curis Resources did not submit evidence demonstrating that the
Florence Copper Project complies with local zoning ordinances. On the contrary, the
applicant’s request for a change in zoning to allow the pilot project to go forward was denied
and the Florence Town Council has expressed its almost unanimous opposition to the project
by its 6-1 approval of Resolution No. 1324-11. Under A.R.S. §49-243(O), the Director of
ADEQ cannot legally issue even a temporary individual APP to Curis Resources for the
Printed on Recycled Paper

Florence Copper Project. For this reason, ADEQ must revoke Temporary Individual Permit
No. P-106360.
I look forward to receiving ADEQ’s responses to our comments as well as notification of the
ADEQ decision on the issuance of temporary individual APPs as issued on September 28,
2012. I request that ADEQ send the responsiveness summary and notice of the ADEQ
decision to me by certified mail at the address below. I understand that I have the right to
appeal the ADEQ decision to issue, modify, or revoke the individual temporary APP for the
Florence Copper Project Production Test Facility pursuant to A.R.S. §41-1092.03(B). I am
requesting notice of the ADEQ decision by certified mail so I can preserve my right to file a
timely administrative appeal.
Thank you for considering our comments.
Sincerely,
Steve Pawlowski
Arizona Water Sentinels Coordinator
Sierra Club –Grand Canyon Chapter
202 E. McDowell Road, Suite 277
Phoenix, Arizona 85004-4536
Printed on Recycled Paper