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US Magnesium is indeed a Superfund toxic waste site, a federal appeals court ruled Friday.
The U.S. Circuit Court of Appeals in Washington, D.C., denied the magnesium company's request to throw out the U.S. Environmental Protection Agency's decision to add the 4,525-acre plant site on the southwestern edge of the Great Salt Lake to the National Priorities List [NPL] for cleanup.
The three appeals judges reviewed in detail the EPA's procedural process for determining toxic cleanup sites and validated the agency's method of scoring the US Magnesium site. Any site with releases to the air, land or water that scores higher than 28.5 belongs on the list, the justices noted in their 11-page ruling.
The EPA scored the magnesium-plant site at 58.18, based on the toxic waste detected in the air and soil. But it was a very high score on toxic releases to the air that prompted US Magnesium and the court to look closely at the handling of air pollutants, which include hexachlorobenzene and dioxin.
The company, which captures magnesium chloride from the Great Salt Lake, extracts the magnesium and melts much of it into metal-strengthening alloys, contended the EPA's scoring should be thrown out because it was "arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with the law."
But the court determined EPA handled the scoring by the book, a manual called the Hazard Ranking System (HRS).
"Because the EPA followed the HRS precisely in scoring the air migration pathway and affirmation of the EPA on that first issue results in a score above the cut off for inclusion on the NPL," wrote Judge Stephen F. Williams, "listing the [US Magnesium] site on the NPL was not arbitrary or capricious."
The EPA has a long-standing dispute with the company over its routine handling of wastes, material the company says that Congress exempted from the hazardous waste law.
Superfund status gives the EPA, with the help of the Utah Division of Environmental Response and Remediation, authority to investigate the site further to determine what should happen next. A cleanup at the site, if required, is expected to run into the millions of dollars.
"We can move forward," said Andy Lensink, an EPA attorney.
Tom Tripp, technical services manager for US Magnesium, noted that the facility has been on the priority list since November 2009, so "nothing much has changed" because of Friday's ruling.
"We are somewhat disappointed that the court didn't see things our way on one of the main points we challenged in the EPA's listing process," he said. "We look forward to working with [the agency] in resolving this issue."
US Magnesium
The company, which has about 450 employees, is the last magnesium producer in North America and one of the largest in the world. At least five others have folded to competition from China, which makes about 90 percent of magnesium worldwide. The Utah plant has the capacity to produce 56,000 tons a year.
A modernization a decade ago slashed the plant's pollution output and toppled the company from the top of the nation's list of worst polluters to a spot completely off the top-100 list. The company is currently working on a new expansion and modernization.