By John Dougherty
The Arizona Department of Environmental Quality is refusing to release more than a dozen emails with the governor’s office concerning the issuance of the air pollution permit for the proposed Rosemont copper mine.
Most of the withheld emails are between Kevin Kinsall, Governor Jan Brewer’s policy advisor for natural resources, and Eric Massey, director of the ADEQ’s Air Quality Division. Kinsall and Massey exchanged a dozen emails between last Aug. 1 and Aug. 8 during a crucial period when the state took control of Rosemont’s air pollution permit from Pima County.
The ADEQ announced last Aug. 3 that it was asserting authority over the review and issuance of Rosemont Copper Company’s application for the pollution permit for its massive open pit copper mine planned for the Santa Rita Mountains southeast of Tucson. ADEQ stated it was assuming oversight of the permit to “ensure regulatory certainty and enhanced environmental protection.”
But Pima County’s top administrator, Chuck Huckelberry, told the Arizona Daily Star the state’s action would put Rosemont’s air pollution permit approval “on a fast track”. Pima County was requiring Rosemont to strictly adhere to state regulatory requirements, prompting Rosemont to request the state to take over the permitting from the county in December 2011.
The secret emails between the governor’s office and the ADEQ came to light in an administrative appeal filed after ADEQ issued an “air quality permit” to Rosemont Copper on Jan. 31. The ADEQ is also refusing to release about 20 internal emails. The agency has disclosed the fact that email communications occurred, but has refused to release the contents of the emails dated between December 2011 and August 2012.
The ADEQ is claiming the emails are exempt from disclosure under the Arizona Public Records Law. The agency states the reason for withholding emails with the governor’s office is because they fall under “deliberative process privilege — Email correspondence for developing briefing memo for Governor’s Office and press release”.
The public records law, however, does not provide a “deliberative process” exemption. Arizona’s public records law is among the strongest in the nation. Public agencies can only refuse to release records that are expressly protected by statute. While there are more than 300 state statutes exempting certain records from public disclosure, the “deliberative process” is not among them.
The emails, according to a log of the communications released by the ADEQ on May 23, involved discussions between the agency and the governor’s office concerning jurisdictional issues, drafting press releases, a briefing memo and news articles.
Dr. Joel Fisher, a southern Arizona resident and an expert in environmental pollution contaminants, is raising the issue of the undisclosed emails in his appeal of ADEQ’s issuance of the air permit. Fisher has more than 50 years experience in studying pollution and for decades worked for the U.S. Environmental Protection Agency and the U.S. State Department.
Fisher’s attorney, Vince Rabago, states in filings before an administrative hearing officer that the withheld emails “suggests political involvement and ostensible political interference by the Governor’s office in apparent connection with (ADEQ’s) deliberations concerning the Rosemont Copper mine project.”
Rabago argues that the withheld communications suggest that ADEQ illegally based its decision to issue the air pollution permit on factors other than protecting the public health under state and federal laws.
The ADEQ’s own documents summarizing the content of the emails with the governor’s office “were arguably concerned or overshadowed by non-legal non-environmental issues, including the public image of the Agency, and perhaps even the speed of issuing the permit,” Rabago states.
Dr. Fisher’s appeal alleges Rosemont’s air permit fails to protect public health as required by the Clean Air Act; that ADEQ issued the wrong permit classification thereby requiring less stringent standards; that ADEQ used faulty modeling and calculations; and that the newly discovered evidence of secret emails suggests ADEQ made its decision on political considerations rather than on impact to the public health.
In a July 16 order, Administrative Law Judge Thomas Shedden stated he would rule on whether the ADEQ emails should be made public during the upcoming appeals hearing scheduled to begin on July 26 and continue for several weeks.© Copyright 2013 John Dougherty, All rights Reserved. Written For: Investigative MEDIA