ALJDEC - Licensing
25A-A03-DEQ · Department of Environmental Quality · 2025-12-03
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
CENTER FOR BIOLOGICAL DIVERSITY, FARMERS INVESTMENT CO., and SAVE THE SCENIC SANTA RITAS
ASSOCIATION,
Appellants,
vs.
ARIZONA DEPARTMENT OF ENVIRONMENTAL QUALITY,
Respondent,
COPPER WORLD, INC.
Intervenor.
No. 25A-A03-DEQ
ADMINISTRATIVE LAW JUDGE DECISION
FINDINGS OF FACT
In October 2022, Copper World applied for a Class II permit for an open-pit copper mine in the Santa Rita mountains, southeast of Tucson (“the Mine”).
The initial application was submitted by Rosemont Copper Company, but
Rosemont’s sister-company Copper World later stepped in as the applicant.
The Mine is located in an area that is in attainment with all NAAQS.
Proposed activities at the mine include open-pit mining, ore processing, and tailings storage.
Copper World proposed to accept voluntary emissions limits to stay below major source thresholds, making the Mine eligible for a Class II permit.
As part of its application, Copper World submitted detailed emissions calculations for all sources of air pollution at the Mine.
Based on Copper World’s calculations, the Mine’s non-fugitive emissions fell below 100 tpy for all criteria pollutants including PM-10 and PM-2.5, confirming the Mine would not be a major source.
During public comment, Appellants asked ADEQ to reclassify some of the Mine’s emissions as non-fugitive for purposes of evaluating major source thresholds.
ADEQ agreed to reclassify a small fraction of ore processing emissions as nonfugitive, but ADEQ declined to reclassify emissions from storage piles and from unloading and loading operations, explaining that those emissions could not reasonably be captured.
Despite the reclassification, the Mine’s non-fugitive PM-10 and PM-2.5 emissions remained below 100 tpy.
TSP emissions increased to 196 tpy, but pursuant to ADEQ and EPA’s
longstanding interpretation of Title V, ADEQ determined that a Class II permit remained appropriate.
12. On January 2, 2025, ADEQ issued the Final Permit.
13. Appellants served ADEQ with a notice of appeal on January 30, 2025.
14. Appellants provided ADEQ with a corrected notice of appeal on January 31, 2025.
15. The Final Permit substantially complies with all applicable state and federal air pollution control requirements.
CONCLUSIONS OF LAW
Appellants bear the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(1).
The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.
A preponderance of the evidence is:
The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Black’s Law Dictionary 1373 (10th ed. 2014).
Ariz. Rev. Stat. § 49-104(A)(16) provides:
The department shall: . . . 16. Unless specifically authorized by the legislature, ensure that state laws, rules, standards, permits, variances and orders are adopted and construed to be consistent with and not more stringent than the corresponding federal law that addresses the same subject matter.
Arizona Administrative Code R18-2-101(59) provides:
“Fugitive emissions” means those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.
Arizona Administrative Code R18-2-101(75)(c) provides:
“Major source” means:
. . .
c. A major stationary source, as defined in section 302 of the Act, that directly emits or has the potential to emit, 100 tpy or more of any air pollutant including any major source of fugitive emissions of any such pollutant. The fugitive emissions of a stationary source shall not be considered in determining whether it is a major stationary source for the purposes of section 302(j) of the Act, unless the source belongs to a section 302(j) category.
The preponderance of the evidence shows that Appellants have not met their burden of persuasion to demonstrate that emissions from the Mine’s stockpiles and tailing storage facilities and emissions from loading and unloading operations as non-fugitive when evaluating whether the Mine was a major source.
Likewise, Appellants have failed to meet their burden of persuasion that major source should be construed to include “any pollutant”.
In conclusion, Appellants failed to meet their burden that the issuance of Class II permit was inappropriate. Title 49 makes clear that the legislature expected ADEQ to treat a source as major only if would be a major source under federal law too. ADEQ had no authority to deviate from EPA’s interpretations of the Act and the body of federal caselaw law approving those interpretations. Furthermore, it followed all of its procedures and provided Appellant’s with the opportunity to present its concerns at the public comments period. In fact, it during that period that ADEQ agreed to reclassify assumed losses from some of the Mine’s emissions capture systems as non-fugitive. Despite that reclassification, ADEQ determined that a Class II permit remained appropriate, and Appellant’s have failed to demonstrate that the same should not have been issued.
Consequently, Appellant’s appeal should be dismissed.
ORDER
IT IS RECOMMENDED that Center For Biological Diversity, Farmer Investment Co., and Save The Scenic Santa Ritas Association appeal is dismissed.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.
Done this day, December 3, 2025.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Karen Peters,
Department of Environmental Quality
Adriane J. Hofmeyr
Hofmeyr Law, PLLC
[email redacted]
Paul Phelps
Assistant Attorney General
[email redacted]
Eric L. Hiser
Trevor Burggraff
[email redacted]
[email redacted]
By: OAH Staff