Utah Supreme Court weighs legal challenges in Alton coal mine permit

Published: Monday, March 5 2012 11:45 a.m. MST

This image provided by the Southern Utah Wilderness Alliance shows a strip mine near Alton, near Utah's Bryce Canyon National Park.

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SALT LAKE CITY —  Environmentalists arguing that state regulators improperly issued a permit for Utah's first strip coal mining operation in Kane County aired their case before the Utah Supreme Court Monday, laying out the reasons it should be yanked.

At issue is the October 2009 issuance of a permit by the state Division of Oil, Gas and Mining to Alton Coal Development for its Coal Hollow Mine near Alton. The Nevada-based company proposed to operate a mine on private land of 634 acres and produce 2 million tons of coal annually for several years.

Groups such as the Southern Utah Wilderness Alliance contested the division's granting of the permit, and the mining board's subsequent support of that decision, claiming permitting deficiencies in 32 areas.

Attorney Walt Morris, representing environmental groups, told sitting justices the company's application was incomplete on a number of levels and therefore state regulators relied on fundamentally flawed reasoning, ignoring the duty to withhold permit approval.

Agency action was "arbitrary and capricious" in that three major regulatory components of the permitting process were not met, the group said, including protection of cultural resources, adequacy of the analysis of cumulative impacts to ground and surface water and an insufficient demonstration of how water monitoring results will be acted upon.

Morris stressed that while the state has the ability to implement mining oversight that may differ somewhat from federal mandates, in doing so Utah cannot stray from federal requirements and act in ways that are no "less" stringent.

Steve Alder, an assistant Utah attorney general, countered that the requirements within Alton's permit conform with state law, are sufficiently inclusive of regulatory rules but don't have to adhere to mere federal "commentary" or suggestions on rules not yet implemented.

"There is no direct conflict between what the board and division did and federal regulations," he said.

The Alton Coal mine has brought a storm of protest by some residents who say it will destroy the historic nature of downtown Panguitch as heavy equipment trucks roll through town carrying loads of coal.

Critics say it is too close to scenic, protected areas such as Bryce Canyon National Park and the mining operation will threaten critical water resources and cultural artifacts.

Supporters that include local counties and area residents hungry for jobs say the mine is located far enough from the park to have any negligible impact and environmental protections the mine will put in place will be protective of water and cultural resources.

Attorney Denise Dragoo, representing Alton Coal, told the court that the mining operation will have a water containment system that includes evaporation ponds that allow for zero discharge.

In addition, 54 monitoring points throughout the hydrologic system record "before and after" data of potential contamination that then triggers a response by mine operators, she said.

The high court hearing to determine if Alton's permit was properly issued comes even as it seeks to expand its operation to 3,581 federal lands.

A federal study on that proposal has been going through an environmental review process by the Bureau of Land Management that prompted hundreds of thousands comments during a public input period that ended in January.

The court will not likely issue a decision for several months.

E-mail: amyjoi@desnews.com Twitter: amyjoi16

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