Court rescinds Rosemont’s state air quality control permit

A Maricopa County (AZ) Superior Court judge today rescinded the state air quality control permit for Toronto-based Hudbay Mineral’s proposed Rosemont copper project in Arizona.

Judge Crane McClennen reversed the Arizona Department of Environmental Quality’s (AzDEQ) January 2013 decision to issue the air pollution permit for the proposed mile-wide, half-mile deep open pit copper mine planned for the Santa Rita Mountains on the Coronado National Forest southeast of Tucson.

“This Court concludes there was not substantial evidence to support the action of the AzDEQ, and the action of the AzDEQ was contrary to law, was arbitrary and capricious, and was an abuse of discretion,” the ruling states.

The ruling sends Rosemont’s air quality permit back to AzDEQ “for further consideration using the proper criteria.”

McClennen ruled in favor of an appeal filed by the Tucson-based citizen’s group Save the Scenic Santa Ritas that argued that the proposed mine would violate national air pollution standards. SSSR also presented evidence that demonstrated Rosemont’s air pollution model was flawed and understated the potential for air pollution from mining operations.

“This Court concludes the authorities and arguments provided by SSSR are well-taken, and this Court adopts those authorities and arguments in support of its decision,” the ruling states.

SSSR’s appeal overcame substantial legal hurdles that favored upholding AzDEQ’s decision to issue the air permit. In reviewing an agency’s decision pursuant to the (Arizona) Administrative Review Act, the superior court must affirm the agency action unless it is “not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion.”

The court’s decision delivers a major setback to Hudbay’s plans to construct the $1.5 billion copper mine. A second lawsuit challenging the Rosemont air quality permit is also pending in Pima County Superior Court.

SSSR’s request for attorneys’ fees was deferred until expected appeals and subsequent rulings from higher courts are issued.

“Because it is likely this matter will be appealed to the Arizona Court of Appeals with possible review by the Arizona Supreme Court, this Court considers it more appropriate to wait until the further appeals process has run its course before considering the issue of attorneys’ fee,” McClennen ruled.

The decision marks another major twist in Rosemont’s effort to secure the air quality control permit. The permit issue has bounced around for more than three years between the state and Pima County governments since the mining company applied for it, the Arizona Daily Star reported in January.

Rosemont sharply criticized SSSR when it filed the law suit challenging the air permit. Rosemont Copper vice president Kathy Arnold told the Arizona Daily Star in June 2014 that the suit was another request for legal review filed by a group that has appealed and lost on other issues.

“We are confident that this will be rejected after review,” Arnold, Rosemont’s vice president of environmental and regulatory affairs, told the newspaper.