U.S. District Judge Robert Shelby is considering whether Utah Kennecott Copper violated the federal Clean Air Act after hearing arguments Tuesday in a lawsuit filed against the mining company by a collection of environmental groups.
Kennecott attorneys are asking for a swift ruling in the suit without a full trial, but after three hours of arguments from both parties, the judge took the case under advisement, saying he has a lot to consider.
A key issue in the case is whether sizable expansions of the mining operation in west Salt Lake County required approval of the U.S. Environmental Protection Agency (EPA). Environmentalists argue that approval — which never was obtained — was necessary. Kennecott says state approval of the expansions was all that was required by the law because oversight is delegated by the EPA to the Utah Division of Air Quality.
"The judge really understands what this argument is about and why it is important," said Samantha Ruscavage-Barz, representing a collection of groups including WildEarth Guardians, Utah Physicians for a Healthy Environment, Utah Moms for Clean Air and the Sierra Club.
The groups filed suit in December 2011, demanding the mine be ordered to scale back its operations and seeking tens of millions of dollars in penalties. They claim state approval to increase earthmoving operations at Kennecott’s Bingham Canyon Mine from 150½ million tons to 260 million tons annually was invalid because it lacked signoff by the EPA.
"Under the Clean Air Act, the state has to seek approval if it relaxes the requirements," Ruscavage-Barz said.
Kennecott officials have a very different view.
"There are two clear ways to stay in compliance," said Kennecott attorney Michael Zody. "Stay under 150.5 million [tons of material moved] or get the approval.… With state approval and issuing of the decision, compliance was met."
Kennecott received two approvals from the state — one in 1999 and 2011. Both permit changes passed a technical review by state regulators, a public-input process and a vote of the Utah Air Quality Board.
For the first permit change, state regulators say, Kennecott found ways to offset additional dust from the increased material hauled. And, for the more recent permit change, the company expects pollution to decrease through the use of clean-air fuels and other emission-cutting measures.
Shelby acknowledged Kennecott’s contention that concerns at issue in the lawsuit should have been addressed during earlier public comment periods associated with the two changes in the mine’s permit.
"Many people had the opportunity to weigh in to stop it from happening and there was no legal opposition. There was a decision made and we moved forward, investing in this operation and hiring people," Kennecott spokesman Justin Jones said after the hearing.
Plaintiffs claim that since the state approved the expansions, particulate pollution from the Wasatch Front’s top source of industrial emissions has also increased, putting Salt Lake City in violation of federal limits and impacting public health.
"The health of our families, especially our children, should be our number one priority in Utah," said Cherise Udell, of Utah Moms for Clean Air. "We can no longer allow Kennecott to pass their costs of doing business on to this community and sacrifice our health and quality of life in the process."
Kennecott said it has an ongoing commitment to the well-being of its workers and the community and fully complies with strict, health-based pollution limits set by state and federal regulators.
"We can all argue that Utah has to work to clean up the air," said Kennecott’s Jones. "But in this case we will wait to hear the judge’s decision on this legal matter. "
Brian Maffly contributed to this report.
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