Florence Copper, Inc. (Board decision, July 26, 2017)

Plain-English summary

The Gila River Indian Community asked the Environmental Appeals Board to dismiss its appeal concerning Florence Copper's UIC permit. The Community reported that it had reached a settlement with Florence Copper and no longer sought relief from the Board. EPA Region 9 did not oppose the motion. The Board dismissed the petition and appeal with prejudice and removed UIC Appeal No. 17-02 from the scheduled oral argument calendar.

Decision snapshot

• Cited authorities: 40 C.F.R. § 124.19(f)(2) and § 124.19(k)
• Outcome: The petition and appeal were dismissed with prejudice.
• Key point: The EAB may dismiss an appeal when the petitioner reports a settlement and no longer seeks relief.

Full text (EPA EAB public release)

                     ENVIRONMENTAL APPEALS BOARD
               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                              WASHINGTON, D.C.

In re:

Florence Copper, Inc. ) UIC Appeal No. 17-02
)
UIC Permit No. R9UIC-AZ3-FY11-1 )
)

             ORDER DISMISSING PETITION FOR REVIEW

On July 25, 2017, the Gila River Indian Community (the “Community”) filed a “Motion to Dismiss Appeal” pursuant to 40 C.F.R. § 124.19(k). See Gila River Indian Community’s Motion to Dismiss Appeal (“Motion to Dismiss”). Section 124.19(k) provides that a petitioner, by motion, may request that the Environmental Appeals Board (“Board”) dismiss its appeal. The motion “must briefly state the reason for its request.” 40 C.F.R. § 124.19(k). The Community represents in its motion that it has reached a settlement with Florence Copper, Inc. (the permittee in this matter) and that the Community therefore moves to “dismiss its appeal with prejudice * *

• in lieu of further litigation of this appeal” and that “the Community no longer seeks any relief
  from the Board.” Motion to Dismiss Appeal at 1. The Motion to Dismiss makes no representation as to the position of U.S. Environmental Protection Agency, Region 9 (the “Region”) on the motion. See 40 C.F.R. § 124.19(f)(2) (“In advance of filing a motion, parties must attempt to ascertain whether the other party(ies) concur(s) or object(s) to the motion and must indicate in the motion the attempt made and the response obtained.”). The Clerk of the Board contacted the Region to ascertain its position on the Motion to Dismiss, and the Region stated that it does not oppose the Motion to Dismiss.

Based on the foregoing, the Board GRANTS the Community’s Motion to Dismiss. The Community’s petition and appeal are dismissed with prejudice. The Board previously scheduled oral argument on this petition and two other petitions (UIC Appeal Nos. 17-01 & 17-03) for July 27, 2017. In light of this order, UIC Appeal No. 17-02 is removed from the July 27, 2017 oral argument calendar. The Board will proceed with oral argument on July 27, 2017 on UIC Appeal Nos. 17-01 & 17-03.

So ordered.¹

                     ENVIRONMENTAL APPEALS BOARD

Dated: July 26, 2017 By: Aaron P. Avila
Aaron P. Avila
Environmental Appeals Judge

¹ The three-member panel deciding this matter is composed of Aaron P. Avila, Mary Kay Lynch, and Mary Beth Ward.

                     CERTIFICATE OF SERVICE

I certify that copies of the foregoing Order Dismissing Petition for Review in the matter of Florence Copper, Inc., UIC Appeal No. 17-02, were sent to the following persons in the manner indicated:

By First Class Mail:

George A. Tsiolis
Attorney at Law
351 Lydecker St.
Englewood, NJ 07631

Rita Maguire
Maguire, Pearce & Storey, PLLC
2999 North 44th St., Suite 650
Phoenix, AZ 85018

Ronnie P. Hawks
Jorge Franco, Jr.
Jennings, Haug & Cunningham, LLP
2800 N. Central Ave., Suite 1800
Phoenix, AZ 85004-1049

Linus Everling
Thomas L. Murphy
Gila River Indian Community
525 W. Gu u Ki
P.O. Box 97
Seaton, AZ 85147

John L. Anderson
2631 N. Presidential Dr.
Florence, AZ 85132

Merrill C. Godfrey
Ian A. Shavitz
Michael-Corey Hinton
Akin Gump Strauss Hauer & Feld, LLP
1333 New Hampshire Ave., NW
Washington, DC 20036-1564

Christopher Kramer
Barbara U. Rodriguez-Pashowski
Gust Rosenfeld PLC
One E. Washington, Suite 1600
Phoenix, AZ 85004.

By EPA Pouch Mail:

Alexa Engelman
Office of Regional Counsel
U.S. EPA Region 9 (ORC-2)
75 Hawthorne St.
San Francisco, CA 94105

By Interoffice Mail:

Leslie Darman
Water Law Office
Office of General Counsel (MC-2355A)

Dated: July 26, 2017 Annette Duncan
Administrative Assistant