Curis Resources has sued the town of Florence in federal court to overturn a new town ordinance prohibiting businesses that use large quantities of sulfuric acid.
The suit alleges the ordinance, which the Town Council unanimously approved on Aug. 6, violates Curis’ equal protection and due process rights. The suit further says the ordinance has other defects such as impairment of contract (between Curis and the state of Arizona); is a special law (aimed at Curis); federal and state preemption (overruling federal and state authorities) and exceeding the town’s statutory authority.
Curis Resources, owner of the Florence Copper Project, seeks a declaration that the ordinance is null and void, and an injunction that prevents Florence from initiating criminal proceedings against Curis or its employees, or denying Curis its constitutional property rights. Attorneys for Curis filed the suit Oct. 16 in U.S. District Court.
Rita McGuire, senior legal and government affairs advisor for Curis Resources, said in a prepared statement, “Curis would prefer to avoid taking this action, but unfortunately the Town Council’s passage of an ordinance banning the use and storage of sulfuric acid violates Curis’ constitutionally protected property rights and likely those of other businesses in Florence. We think a better approach is to allow the pilot copper recovery study to move forward, overseen by the Arizona Department of Environmental Quality (ADEQ) and U.S. Environmental Protection Agency (EPA), so that the safety of this project can be demonstrated to the community.”
The town of Florence, meanwhile, remains confident that the Town Council approved a good law:
“The town is confident the ordinance, as passed, will be held up in court,” Deputy Town Manager Jess Knudson said Tuesday. “Any accusations in the suit that Curis Resources is being unfairly targeted are simply not true.”
He said the ordinance applies to existing and future businesses in the town of Florence and within two miles of town limits.
The Curis property off Hunt Highway remains a potential residential area in the town’s General Plan, and the sulfuric acid ordinance is “not taking away any right they currently hold,” Knudson said.
Curis Resources disagrees, and states in the lawsuit:
“Florence officials and employees acted with the improper motive of singling out Curis, destroying the economic viability of the [Florence Copper] Project, and rendering worthless the Curis investment in the Project and the real property that it owns and leases, its legal nonconforming land use rights, and the value of the mineral lease for state trust lands.
“The ordinance unjustly denies Curis equal protection of the laws ....
The ordinance forbids the Florence Copper Project, which “utilizes a fully recovered water-based solution [of 1 percent or less sulfuric acid], but permits businesses engaged in agricultural operations to dump concentrated sulfuric acid directly into irrigation water and onto the ground,” which is “arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare of the citizens of Florence,” the suit says.
“... In proposing and enacting the ordinance, Florence acted under color of law to deny Curis the rights, privileges and immunities guaranteed by the United States Constitution.
“... The ordinance, in substance, simply disagrees with previous decisions of ADEQ and EPA to permit in-situ mining on the site, and the recent ADEQ decision to issue another temporary permit for the Project. Florence cannot as a matter of state law overrule and reverse the decisions of the ADEQ or the EPA.”
Late last month, ADEQ granted the Florence Copper Project a temporary permit, allowing Curis to conduct a small-scale test run of the project for one year. But first, the company needs another permit from the EPA and to overcome the objections of the Town Council. It must also complete a public comment process.
Knudson said Tuesday the town has yet to hear from ADEQ when comments will be collected or a public hearing will take place.
Sulfuric acid
The suit alleges the ordinance is biased against the Copper Project, while the town has stated no similar objections to other users and potential users of sulfuric acid:
“Sulfuric acid is a common industrial and household chemical. It can be found in many common products, including fertilizers, insecticides, paint, ink, laundry detergent, dishwashing soap, hand soap, toilet bowl cleaners, aquarium care products, and swimming pool chemicals,” the suit says
“One of the most common uses of sulfuric acid is in agriculture, as an additive to irrigation water to alter the pH level of the water and soil. When used in this manner, sulfuric acid is poured directly into irrigation water, which in turn is released into the ground to irrigate food and feed crops. Unlike in in-situ mining, sulfuric acid used in agriculture is not recovered, but is left to percolate into the ground where it can migrate into the aquifer beneath it.
“... The ordinance exempts ‘agricultural operations’ from the criminal prohibition on the use of sulfuric acid. Despite the fact that agricultural operations store large quantities of sulfuric acid, and mix the acid directly into irrigation water ... neither the ordinance itself nor the Florence Town Council during debate on the ordinance explains why the health and safety hazards of sulfuric acid apply to ‘in-situ mining and other businesses’ but do not exist for agricultural operations.
“Both the ordinance and the legislative history indicate that the true purpose behind the ordinance is not the protection of public health and safety, but to prevent Curis from moving forward with the Project,” the suit concludes.
“The ordinance and its preamble refer to the in-situ mining process at least 12 times, but make no reference to grocery stores, pet supply stores, automotive repair shops, warehouses, trucks and trains carrying sulfuric acid through the town, or any other business that might use or store ‘large quantities’ of sulfuric acid.”
Even the “large quantities” as set forth in the ordinance are vague and unsupported, the lawsuit says:
“The ordinance defines ‘large quantities’ of sulfuric acid as ‘more than 50 gallons used or stored within any 30 day period.’ The ordinance does not define the term ‘sulfuric acid’ and does not specify ... a concentration level necessary for a substance to qualify as sulfuric acid under the ordinance.
“The ordinance does not cite, and the Town Council did not rely upon, any valid scientific or medical studies justifying the 50-gallon threshold or the 30-day period. Many of the manifested health and safety incidents involving sulfuric acid occur in connection with their consumer use in household cleaning products,” the suit says.