Opinion: Utah’s SB172 is special interest legislation on steroids

One might ask Sen. Hinkins why, of all the many sectors of economic activity, mining alone should be exempt from ordinary government oversight.

(Leah Hogsten | The Salt Lake Tribune) The area in Parley's Canyon where Granite Construction is proposing to excavate a limestone quarry, Wednesday, July 27, 2022. The mine would open a massive pit under Grandeur Peak, drawing massive push back from Salt Lake County officials and nearby property owners.

Sen. David Hinkins (R-Emory County) has drafted a bill, SB172, that would clad the mining industry in nearly bullet-proof legal armor, making it, for all practical purposes, immune from regulation by municipal, county or state government, or by private parties. Hearings are scheduled for early this week.

A Feb. 4 article in The Salt Lake Tribune is a perfect example of what’s wrong with SB172. It describes a copper mine in San Juan County that uses acid to process its ore above ground. It plans to expand its mine from the upper to the lower Lisbon Valley, but it needs the EPA to exempt the lower valley’s aquifers from the Clean Water Act protections that they currently have from being contaminated by ore leachate.

A ranch and a bed-and-breakfast grace the as-yet unspoiled lower Lisbon Valley. The owners of both properties fear that moving the mine’s copper leaching operation closer and putting it underground would poison the wells that they depend on. A geology professor confirms their fears, saying that the risk of poisoning the lower valley wells is substantial, but could only be proved by a thorough study.

Conceivably, a Trump-led EPA might grant the mine the Clean Water Act exception that it needs without knowing whether expansion would poison the Lower Valley’s wells. Under current law, the state, county or affected party could still halt the mine’s expansion until the matter is adequately studied. Under current law, it is still possible to regulate such a mine if the measures are “directly related” to public health or safety.

All that would change under SB172. The legislation would not allow the state or a county to regulate a mine in any way unless they could show “clear and convincing evidence of imminent danger to the public health, safety and welfare.” This would leave Lower Valley residents defenseless unless they had a thorough, definitive study already in their pocket proving that the risk of aquifer poisoning was certain and immediate. Without that level of proof, SB172 would dictate that they lose in court, and would further dictate that they pay the mine owner’s court costs and attorney’s fees.

Current law allows agricultural, industrial and mining operations to be insulated from normal levels of regulation and placed in “protected areas” if such economic activity is found to be sufficiently important to the public good. But before such “protected areas” are established, there has to be consent by the majority of land owners within the area, public notice and hearing, input from local advisory commissions and agreement by the municipal or county government. SB172 would keep these forms of democratic involvement when establishing agricultural and industrial protected areas, but for mining it would throw them out.

Utah has 23,214 active mining claims, and tens of thousands more that could be easily reactivated, given the incentives provided by SB172. These claims cover the most sensitive and valuable natural areas in the state like a patchwork quilt. Imagine open pit mines next to your favorite Wasatch Front ski runs, foothill trails and National Park vistas, all expanding without control and virtually immune from environmental discipline of any kind. That is the promise of SB172.

SB172 also presents another threat. It would allow mining rights to be acquired and locked in (“vested”) on the flimsiest of evidence. Once vested, it would make those rights nearly impossible to challenge. Vested mining rights include the right to consume all of the water needed to operate a mine. Utah leases large areas of the Great Salt Lake to companies who evaporate its brine to collect mineral residues. For example, Compass Minerals’ leases allow it to consume 400,000 acre-feet of the Lake’s water each year (six times the capacity of Echo Reservoir). For leaseholders like Compass, SB172 would lock in both mineral and lake water rights, and bar the State from curtailing their full use.

One might ask Sen. Hinkins why, of all the many sectors of economic activity, mining alone should be exempt from ordinary government oversight. Out-of-state corporations would be the primary beneficiaries of the favoritism that SB172 would bestow. For example, just two such corporations — Rio Tinto and Canyon Consolidated Resources — earn more metal, industrial mineral and coal revenue than all of Utah’s remaining mining operations put together. Mining contributes only 4% of Utah’s GDP. Where they conflict, why elevate mining interests above those of farmers, ranchers, municipalities and the multi-billion-dollar outdoor recreation industry, especially when mining does proportionately more harm to airsheds, watersheds, scenic landscapes and aquifers than any of these other forms of economic activity?

SB172 is special interest legislation on steroids. I urge Utah’s legislators to treat it as such.

Malin Moench

Malin Moench spent 37 years performing legal and economic analysis of public utilities at the federal level. Now retired, he volunteers for various nonprofits that focus on public health and environmental protection.

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