Advocates: Clean air on trial in Kennecott permit challenge

Published: Tuesday, Sept. 24 2013 8:08 p.m. MDT

Kennecott copper mine, the largest open pit mine in the world, in Bingham Canyon, Utah.

Douglas C. Pizac, File, Associated Press

Enlarge photo»

SALT LAKE CITY — A federal judge spent most of Tuesday afternoon hearing arguments about what a few simple words really mean.

According to the attorney's representing Rio Tinto's Kennecott and its ambitious plan to expand its operation, the words in a state air pollution plan mean exactly the information they are intended to convey: The operator must receive state approval.

Attorneys for clean air advocates who are challenging the expansion insist those same words indicate Kennecott should have obtained federal approval — and it did not.

U.S. District Judge Robert J. Shelby noted at the outset of the hearing that the court has to decide if the state air pollution regulations contemplated the kind of changes inherent to the mine operator's expansion and if those changes are within "language" of the law.

"This is going to turn on whether this is a clear or ambiguous expression," Shelby told the attorneys.

Clean air advocates say what is at stake is plain to them.

"This is no less than clean air is on trial," said Dr. Brian Moench, president of Utah Physicians for a Healthy Environment, one of the groups that brought the civil suit seeking to declare illegal the state-issued permit.

"If we win, industry has some real accountability to the public that hasn't been brought before," Moench said. "If we don't, then we have to decide if we have the manpower and resources to mount an appeal. We think the law is clearly in our favor."

So does Kennecott.

Attorney Mike Zody said Kennecott adhered to the process set down in state law, checking off all the necessary requirements to comply with a state pollution plan governing particulate pollution.

"When the EPA approves the (State Implementation Plan or pollution plan) it is giving authority to the state to make a determination that the regulations have been met and that (air quality standards) are being protected, which is at the core of this," Zody said.

Moench's group, joined by the Sierra Club, Moms for Clean Air, and WildEarth Guardians, counter that the Environmental Protection Agency never intended to unilaterally abdicate its responsibility of enforcing the Clean Air Act by approving state pollution plans.

"The state has to prove (the change) will not compromise the ability of it to meet attainment" of federal clean air standards, said attorney Samantha Ruscavage-Barz. "The (State Implementation Plan) cannot be unilaterally dismantled by EPA or the state."

The groups say Kennecott has been repeatedly in violation of production limits agreed to in the 1994 pollution plan.

The plan capped production of ore and rock waste at a little more than 150 million tons, but the company's own records submitted to mining regulators show it has violated that limit each year since 2006, they say.

State air quality regulators have said the amount of material Kennecott is allowed to move has gone up according to modifications that have appropriately been approved over the years because mine emissions have not gone increased beyond permitted levels.

Shelby wondered aloud at the quandary posed by escalating production limits, reductions in emissions, and the role of state oversight and federal approval. While he emphasized "unfettered" discretion on the part of states would gut the Clean Air Act, he noted the issue is rife with complexity over what is really intended by the federally approved state pollution plan.

"Why does it make any sense to require the state of Utah seek permission of EPA to make net-neutral changes?" Shelby asked. "How does that further the purpose of the regulatory scheme?"

Email: amyjoi@deseretnews.com

Twitter: amyjoi16

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