The operators of a proposed copper mine in Florence want a federal judge to void a new town law that would effectively thwart the project.
Attorneys for Curis Resources contend the ordinance limiting how much sulfuric acid anyone can have or use is aimed not at public safety, as town officials claim, but solely to make it impossible for the company to do the proposed leaching project. That makes it a special law which is illegal under the Arizona Constitution.
The company also contends the town lacks the authority to approve such a restriction. And it says the fact the town exempted farming operations from the limits shows that the ordinance is not about public safety but only about the mine.
But Deputy Town Manager Jess Kundson said city council members who approved the law in August were acting within their legal rights under state law. And while he acknowledged the action came as Curis is attempting to get the required environmental permits for the controversial mine, Knudson said there is nothing discriminatory about the measure.
"It also applies to all businesses, existing and future,'' he said.
Hanging in the balance could be whether Curis gets to operate the project on the 1,342 acres it controls, including 160 acres of state land.
The project involves a process known as "in-situ'' mining, where a solution of acid is pumped into the ground and dissolves the copper. The liquid is then pumped back out, with the copper removed.
Plans are to operate the system for close to 20 years.
Opposition from the town, the owner of the water company and nearby landowners did not block the state Department of Environmental Quality from issuing a temporary permit to Curis to start testing the procedure.
But Curis lawyers say if they can't use the sulfuric acid, which they say is diluted to the strength of vinegar, the whole plan falls apart.
Under the terms of the ordinance, any conducting a business using "large quantities'' of sulfuric acid in the town, or within two miles -- where the state trust land is located -- is guilty of a Class 1 misdemeanor.
While businesses cannot be jailed, state law allows fines of up to $20,000. And the ordinance says each day of a violation is a new crime.
Knudson said the ordinance is justified.
"State statutes identify a means for cities and town to identify noxious or otherwise harmful material within respective town boundaries,'' he said, with the authority to limit or minimize the use of those items. "Our town council has obviously determined that large quantities of sulfuric acid in the town are harmful.''
But Curis attorneys said the risks of sulfuric acid listed in the ordinance are "based on informal and anecdotal documents downloaded from the Internet.''
"The ordinance does not city, and the town council did not rely upon, any valid scientific or medical studies supporting the findings in the ordinance,'' the lawsuit states. And it says the measure also does not mention efforts to minimize the risks and protect public health and safety that Curis is doing, either voluntarily or required by federal and state environmental officials.
And then there's the exception for agriculture, as farmers in much of Arizona mix sulfuric acid directly into irrigation water before releasing it onto the field.
"Our council respects the tradition and the history that farming has in Florence,'' Knudson said in explaining the exemption. And he said there is no prohibition against creating such exceptions.
Knudson said it would be wrong solely to look at the issue in terms of the hazards of 50 gallons of acid. He said there's a "bigger picture'' to consider.
"Curis Resources has identified that over the life of the operation ... they're looking at billions of gallons of sulfuric acid being injected into the ground in the immediate proximity to the town's water supply,'' Knudson said.
While granting the temporary permit, DEQ officials say that does not mean Curis will get the final go-ahead for the project. In fact, agency Director Henry Darwin said even this temporary permit will not become effective until there has been a comment period, a public hearing and a chance to resolve all appeals.
"We have worked diligently to ensure that this permit meets all environmental protection requirements while addressing the many concerns expressed during community discussions of this facility,'' Darwin said in a prepared statement when issuing that temporary permit last month. He said allowing the pilot project will produce information allowing his agency and the public "to make a more informed decision about a potential full-scale project.''
This is not the only lawsuit over the mine.
Last month, foes of the mine went to court to block its operation and prevent DEQ from issuing even the temporary permit. The challengers, including Pulte Home Corp. and Johnson Utilities, which provides water to Florence, charge that the mine would pollute the groundwater, a contention Curis disputes.
A hearing on the request for the injunction is set for next month.