EPA wins appeal against Tooele County magnesium plant

SALT LAKE CITY — A nearly 20-year battle the Environmental Protection Agency initially lost against a Tooele County-based magnesium plant — over whether the facility was illegally dumping hazardous wastes — was reversed Tuesday in the EPA's favor.

A 10th Circuit Court of Appeals ruling overthrew a district court judge's Oct. 17, 2007, decision that the U.S. Magnesium facility in Rowley was not illegally disposing five wastes.

The initial lawsuit EPA filed in 2001 claimed U.S. Magnesium was not following regulations promulgated under the Resource Conservation and Recovery Act of 1976, which dictates how waste byproducts must be disposed.

However, the Rowley facility claimed at the time that five wastes were exempt from the specific disposal regulations by an EPA report filed in 1991 that included exempting "process wastewater from primary magnesium processing by the anhydrous process."

The facility uses the anhydrous process to extract magnesium, but the process creates waste products. To make the waste products less dangerous, the facility uses certain pollution control measures, which then generate other wastes, including the five EPA disputed in 2001.

U.S. Magnesium argued in the initial lawsuit that the EPA changed its interpretation of the phrase, initially giving the Rowley facility exemption from certain disposal requirements.

However, EPA maintained four of the five disputed wastes didn't qualify because they're not "process wastewater from primary magnesium processing" but wastewater from the processing of chlorine and hydrogen chloride gasses, according to the appeals ruling. And the fifth waste wasn't wastewater but a nonexempt waste solid, EPA officials said.

The initial lawsuit requested a federal judge to assess penalties for the violations — as much as $27,500 per violation, per day.

The district court in 2007 ruled in the magnesium company's favor, stating that the EPA had not given the public notice or received comment after changing its interpretation and therefore could not sue U.S. Magnesium.

The EPA turned to the 10th Circuit Court of Appeals, which reviewed the case and decided it was not necessary for the agency to give notice or allow comment just on the interpretation.

The appeals ruling also analyzed the EPA's 1991 report, stating the exemption was based on tentative investigation into the Rowley facility.

e-mail: lgroves@desnews.com