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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
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