A coalition of environmental and community groups have filed suit against the EPA due to its delay in responding to objections filed in a petition over an Arizona air pollution permit for a new heavy metals mine in the Patagonia Mountains south of Tucson, Arizona.

 

The lawsuit, Center for Biological Diversity (CBD) and Patagonia Area Resource Alliance v. EPA, seeks to compel the EPA to reject an Arizona Department of Environmental Quality (ADEQ) permit allowing South32, a multinational mining company, to construct and operate the Hermosa heavy metals mine.

“The mine threatens to release hundreds of tons of toxic air pollution every year, putting clean air, biodiversity and the health of nearby communities at risk,” according to a CBD press release.

“Clean air delayed is clean air denied,” Jeremy Nichols, a senior advocate at the CBD, said in the organization’s release. “The EPA needs to stop dragging its feet and hold South32 and the [ADEQ] accountable for protecting people and communities.”

The groups initially filed a petition with the EPA in September 2024 requesting that the Agency object to the air pollution permit for the Hermosa mine, which was approved by the ADEQ in August 2024.

The permit is for a mine to be dug into the Patagonia Mountains, which is categorized as a biodiversity hot spot and a drinking water source for Santa Cruz County. The mine’s location would be 5 miles from the town of Patagonia, a community sustained by local businesses and ecotourism.

The group’s objections to the Title V permit for the mine are that it:

• Fails to ensure compliance with Title V requirements under the Clean Air Act (CAA);
• Fails to ensure compliance with applicable requirements in the Arizona state implementation plan (SIP);
• Doesn’t ensure the enforceability of several permit terms and conditions; and
• Fails to ensure compliance with other applicable requirements, including CAA New Source Performance Standards (NSPS).

Title V permit requirements

Title V of the CAA requires “major sources” of air pollution and a limited number of smaller sources (called “area” sources, “minor” sources, or “non-major” sources) to obtain an emissions permit that details how the facility will comply with air pollution regulations. It includes several specific components, such as:

• Details about pollution control devices required to be installed at the facility,
• Limits on total emissions or operating hours,
• Monitoring requirements, and
• Reporting requirements.

Many states have been granted Title V permitting authority from the EPA within their state boundaries, although the CAA provides the EPA with oversight authority to review Title V permits approved by states.

Petition to reject South32 permit

The CBD submitted timely comments on the draft Title V permit on February 26, 2024, after it was released by the ADEQ late in January that year.

“Petitioners’ comments included detailed technical comments and provided sufficient specificity to alert ADEQ to numerous deficiencies in the draft Title V Permit,” states the September 2024 CBD petition submitted to the EPA. “ADEQ responded to comments on June 10, 2024. … The agency responded directly to some of Petitioners’ concerns, but did not respond directly to a number of Petitioners’ comments. To the extent ADEQ responded to public comments, the agency’s Responsiveness Summary to Public Comments is mostly a disorganized jumble of cursory, and in some cases curt, generic responses to various public comments.

“While the EPA did not object to the proposed permit during its 45-day review period, the agency did provide comments to ADEQ on July 24, 2024, noting many deficiencies in the Title V Permit. … ADEQ responded to EPA’s comments on August 2, 2024, making some changes to the proposed final Title V Permit and proposed final TSD (Technical Support Document).”

The CAA requires conditions of Title V permits to include measures sufficient to ensure compliance with all applicable requirements within the Act. “Applicable requirements” include all standards, emissions limits, and requirements of the CAA, including all requirements in an applicable implementation plan.

According to the CBD petition, the specific reasons the Hermosa Mine Title V permit fails to comply with applicable requirements under the CAA and requirements under Title V include the following:

• The ADEQ didn’t properly characterize fugitive versus non-fugitive emissions and erroneously determined the Hermosa Mine wasn’t subject to CAA Prevention of Significant Deterioration permitting, contrary to the Arizona SIP.
• The Title V permit contains numerous terms and conditions that are unenforceable and/or lack sufficient monitoring to ensure compliance with applicable limitations and requirements.

The Petition concludes, “Most significantly, ADEQ improperly categorized non-fugitive emissions as fugitive, asserting an erroneous potential to emit that does not comply with the Arizona SIP. The Title V Permit also contains numerous terms and conditions that are unenforceable as a practical matter, that fail to set forth sufficient periodic monitoring, and that fail to assure compliance with applicable requirements, particularly the federally enforceable limits on the Hermosa Mine’s potential to emit that are meant to ensure emissions remain below major source thresholds for PSD (Prevention of Significant Deterioration) purposes. Accordingly, Petitioners requests that the [EPA] Administrator object to the Title V Permit and require ADEQ to revise and reissue the Permit in a manner that complies with the requirements of the [CAA].”

Because the EPA failed to respond to the coalition’s petition in a timely manner, the groups filed suit to compel the EPA to respond.

“The coalition urged EPA to reject the permit, citing numerous deficiencies including a lack of enforceable limits on particulate matter pollution, inadequate pollution monitoring and failure to assure best available pollution controls.  Although the EPA was required to grant or deny the petition within 60 days, the agency has yet to respond,” the CBD press release says. “With the transition in administrations, more delay is likely without legal action.”

In addition to the CBD and Patagonia Area Resource Alliance, the groups petitioning include the Sierra Club—Grand Canyon Chapter, the Arizona Mining Reform Coalition, the Calabasas Alliance, and Friends of the Santa Cruz River.

Industry takeaway

The Title V permitting process allows for public participation through the public comment period, which usually occurs after the permitting authority issues a draft permit. The permitting authority is required to consider all substantive comments received. When public comments aren’t adequately addressed, the recourse is to petition the EPA, which has statutory deadlines by which it must respond.

Common challenges and pitfalls in the Title V permitting process, according to renewable energy site assessment platform Transect, include:

• “Incomplete or inaccurate permit applications
• Underestimating emissions or applicable requirements
• Inadequate public outreach and engagement
• Delays in the permitting process
• Changes in project design or operations after submitting the application”

Industry is advised to be attentive during the public comment period to ensure substantive objections are addressed to avoid lengthy setbacks that can result when groups petition the EPA for intervention and/or file lawsuits, which can result in even lengthier and more expensive delays.