Vacate

23-001-WQAB · Water Quality Appeals Board · 2023-06-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

PATAGONIA AREA RESOURCE ALLIANCE,

Appellant,

v.

STATE OF ARIZONA, DEPARTMENT OF ENVIRONMENTAL QUALITY,

Respondent,

SOUTH32 HERMOSA, INC. d/b/a ARIZONA MINERALS, INC.,

Intervenor.

No. 23-001-WQAB

ORDER VACATING

HEARING

Pending before the Office of Administrative Hearings are Respondent Arizona Department of Environmental Quality’s (“ADEQ”) Motion to Dismiss Due to Lack of Standing or in the Alternative to Stay, Appellant Patagonia Area Resource Alliance’s (“PARA”) Response in Opposition to ADEQ’s Motion to Dismiss Due to Lack of Standing or in the Alternative to Stay, and Intervenor South32 Hermosa, Inc., doing business as Arizona Minerals, Inc.’s (“South32”) Opposition to ADEQ’s Motion to Dismiss Due to Lack of Standing or in the Alternative to Stay, ADEQ’s replies thereto, and ADEQ’s Motion to Dismiss Appeal for Mootness and PARA’s response thereto.

On June 12, 2023, at 9:00 a.m. the parties presented brief oral argument concerning ADEQ’s Motion to Dismiss for Mootness. The Administrative Law Judge took the matter under advisement.

In this case, on March 9, 2023, ADEQ issued a final agency action renewing South32’s AZPDES Permit Number AZ0026387, with amendments.

On April 7, 2023, PARA filed a timely appeal of ADEQ’s final agency action renewing South32’s permit. South32’s renewed permit, as amended, has not been issued and has not become effective due to PARA’s appeal of ADEQ’s final agency action to the Water Quality Appeals Board.

Subsequent to PARA filing its appeal, ADEQ decided to further consider public comments it received regarding South32’s proposed renewed and amended permit, including PARA’s comments, and to make revisions to the permit before its issuance to South32.

Consequently, on June 9, 2023, ADEQ withdrew its final agency action by withdrawing its final decision to issue the permit to South32.

PARA’s appeal, giving rise to this administrative proceeding, was of the issuance of the permit to South32. That permit has been withdrawn. Therefore, the action giving rise to this matter, has been rendered moot.

ADEQ will issue another final agency action regarding South32’s permit upon completing its process of revisiting public comment. Upon that final agency action, PARA will have the right to file a new appeal if dissatisfied with the terms of any newly issued permit with regard to all issues upon which it provided public comment.

Therefore, due to ADEQ’s withdrawal of its final agency action, the appeal is rendered moot.

PARA argues that if the appeal is rendered moot, the stay is lifted and South32 will be permitted to discharge into Harshaw Creek and Alum Gulch. What PARA is essentially requesting is an injunction be issued which is outside the jurisdiction of this administrative tribunal. Nothing herein prevents PARA from seeking the relief it is essentially requesting from a court of competent jurisdiction as set forth in A.R.S. § 49-324(D).

The final agency action that conferred jurisdiction to the Office of Administrative Hearings has been withdrawn. Therefore, there is no longer a final agency action from which PARA can appeal at this juncture. Once ADEQ renders a decision on the permit and issues a final agency action, PARA may once again appeal that action.

Upon review and consideration,

IT IS HEREBY ORDERED that the hearing in this matter is vacated from the calendar of the Office of Administrative Hearings.

IT IS FURTHER ORDERED remanding this matter to the Water Quality Appeals Board for further action.

Done this day, June 20, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Connie Castillo, Clerk

Water Quality Appeals Board

Lisa Kautz

100 N. 15th Avenue, Suite 402

Phoenix, AZ 85007

[email redacted]

James Rolstead

Attorney General’s Office

2005 North Central Avenue

Phoenix AZ 85004

[email redacted]

Adriane Hofmeyr

Hofmeyr Law, PLLC

3849 E. Broadway Blvd., #323

Tucson AZ 85716

[email redacted]

James C. Olson, II

Assistant Attorney General

Environmental Enforcement Section

15 S. 15th Avenue

Phoenix, AZ 85007

[email redacted]

[email redacted]

Christopher D. Thomas

Alisha D. Herman

Perkins Coie, LLP

2901 N. Central Avenue, Suite 2000

Phoenix, AZ 85012

[email redacted]

[email redacted]

[email redacted]

Todd C. Gwillim

Legal Manager, North America

South32

2210 E. Fort Lowell Rd.

Tucson, AZ 85719

[email redacted]

By: OAH Staff