High court rejects final appeal of Utah tar sands mine
Without considering the merits of the case, the Utah Supreme Court on Tuesday threw out an environmental challenge to a tar sands mine set to be dug on state trust lands on the Tavaputs Plateau.
Living Rivers, a Moab-based group, was too late when it appealed the state groundwater permit issued to U.S. Oil Sands, according to the unanimous decision penned by Justice Thomas Lee. Because the petition was not filed within 30 days, the 2008 decision by the Utah Division of Water Quality "became final and immune from collateral attack."
But lawyers for Living Rivers said DWQ gave no notice of that decision.
"We didn't find out about it until we challenged the permit before the Utah Division of Oil, Gas and Mining," said Rob Dubuc of Western Resource Advocates. "It was impossible for any party to comment within that 30-day window."
The appeal was the project's last legal obstacle and Calgary-based U.S. Oil Sands plans to begin preparing the 213-acre mine site and bitumen-processing facility this summer. Production of 2,000 barrels of oil a day is expected by fall 2015, according to company president Glen Snarr.
For the past several years, environmentalists have been trying to block the nation's first fuel-producing bitumen mine, proposed at PR Springs, as well as the nation's first commercial oil shale operation set to be built on state trust lands nearby. They claim these are dirty fossil fuel sources that are best left in the ground. Mining and processing these ores would consume excessive amounts of water and energy, and alter the landscape, they contend.
The state had concluded the project did not require a full regulatory review because it poses a "de minimis actual or potential effect on ground water quality." This is because U.S. Oil Sands' extraction process uses a nontoxic solvent, does not discharge much liquid into the ground and "there was only a limited amount of shallow, localized ground water at the site that is not part of a regional aquifer system."
But Living Rivers and its legal team with Western Resource Advocates disputed this finding, pointing to evidence that groundwater feeds many springs near the project area. They insisted U.S. Oil Sands must comply with the full range of regulatory requirements associated with discharging pollution into groundwater.
But the time to raise such a challenge was in 2008, Lee wrote. Instead, Living Rivers filed its appeal after the project's "permit-by-rule" was modified in 2011. However, that petition challenged only facts and issues resolved three years earlier, so the high court found it untimely and ineligible for consideration.
"In so holding, we underscore the significance of time limits on administrative petitions for review," Lee wrote. "Such time limits are not just arbitrary cutoffs. They are important markers, establishing the point at which a party to an administrative proceeding may move forward in reliance on the finality of an agency decision."