County was arbitrary in denying Rosemont air permit, judge rules

2012-07-11T00:00:00Z 2014-07-15T17:50:37Z County was arbitrary in denying Rosemont air permit, judge rulesTony Davis Arizona Daily Star Arizona Daily Star
July 11, 2012 12:00 am  • 

Pima County was "arbitrary and capricious" in denying an air quality permit for the Rosemont Mine last year, a Superior Court judge has ruled.

Pima County Judge Kenneth Lee's ruling doesn't mean the county must grant the permit, which Rosemont Copper needs to operate the proposed open-pit mine in the Santa Rita Mountains southeast of Tucson.

Instead, the judge ordered county officials to collect more information. The county must now give Rosemont Copper 30 days to amend the company's air quality permit application to list all known requirements that it must follow under the law.

The ruling was based on technical and procedural grounds, not on the substance of whether the mine's emissions would meet air quality standards.

One reason that county Department of Environmental Quality Director Ursula Kramer originally denied the air quality permit last September was that the company hadn't listed all requirements it must meet, Lee wrote. Kramer eventually found the application complete despite that failure, the judge said.

"Under these undisputed facts, the court finds the actions of the defendants were arbitrary and capricious, and an abuse of discretion," Lee wrote.

Kramer also ruled that the company had not shown its emissions would meet federal standards - a point that the judge didn't address, although Rosemont Copper has challenged it.

Because of the ruling, Rosemont Copper will pursue air-quality permit applications with both the county and the state government, company CEO Rod Pace said late Tuesday.

Last year, after the county originally denied the Rosemont permit, the mining company appealed to the state to take the permitting process over, on the grounds that the state, not the county, has legal jurisdiction.

Pace said Tuesday that the company still believes the state, not the county, has permit authority, but Rosemont Copper has now decided to pursue a permit from both nonetheless.

The Arizona Department of Environmental Quality is reviewing Rosemont's permit application but hasn't decided whether to take over the case. The court ruling creates another factor for the department to consider in making its decision, ADEQ spokesman Mark Shaffer said Tuesday.

While Rosemont Copper will pursue permits from both agencies, "to expect future change in behavior from the same staff and oversight board that have abused their discretion multiple times would be a bit naïve," Pace wrote in an email to the Star.

In response, Kramer said her staff has always suggested that Rosemont Copper resubmit its application to answer the county's air quality concerns - "but amending an application is really not that much different. It's back to them giving us more information that we said we need in order to process the permit."

On StarNet: Find stories on nature, wildlife and the environment in Southern Arizona at azstarnet.com/environment

Contact reporter Tony Davis at tdavis@azstarnet.com or 806-7746.

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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