Benson’s Mag Ruling Overturned on 3-0 Appeals Court Vote
By JUDY FAHYS
The Salt Lake Tribune
August 18, 2010 10:41AM
Federal regulators may well have the authority after all to decide how a Utah magnesium plant manages its hazardous waste, under a Denver appeals court’s ruling released Tuesday.
The 10th Circuit Court of Appeals threw out an Oct. 17, 2007, decision by U.S. District Judge Dee Benson that US Magnesium in Tooele County is exempted from the nation’s cradle-to-grave hazardous waste law, the Resource Conservation and Recovery Act (RCRA).
In short, the appeals court said the Environmental Protection Agency can update its “tentative” interpretation of a regulation into a final one without additional public input. It ordered Benson to reconsider the case.
Is it any wonder we are in an environmental quagmire. Action began on this issue in 2001. The case was eventually decided by Judge Benson in 2007. Three years later the Appeals Court overturns the decision and orders Benson to reconsider the case, thus it is still unresolved. This is a near total failure of the court system. All this delay has been worth millions to Mag Corp and to New York businessman Ira Rennert, and the public be damned.The corporate polluters are benefited by the slow moving court system and the earth and its inhabitants suffer irreparable damage.
The delay in this decision is far more devastating than the long and tedious process of the death penalty. This needs fixed, and who will fix it? Nobody. This is a horrible condemnation of our justice system.
“Even under the case law US Magnesium asks us to follow, the agency is at liberty to adopt without notice and comment a reasonable interpretation of that ambiguous regulation,” said the opinion written by Judge Neil M. Gorsuch and joined by the two other judges on the appeals panel.
Although neither side has said what it will do next, it is possible the ruling will finally settle the two-decade-old question about the EPA’s ability to enforce the hazardous waste law at the magnesium plant, about 45 miles west of Salt Lake City on the southwest shore of the Great Salt Lake.
Said Andrew Lensink, an attorney handling the case for the EPA: “We’ve just gotten the opinion, and we’re considering our options now.”
Francis M. Wikstrom, an attorney for US Magnesium, echoed that comment, noting that the company’s attorneys will decide their next move after studying the opinion.
US Magnesium, owned by controversial New York businessman Ira L. Rennert, has been fighting RCRA oversight ever since Congress directed the EPA to clarify the “Bevill Amendment” that excluded some mining waste from the federal law.
At the time, the former owner of the company suggested RCRA should not be applied to “[p]rocess wastewater from primary magnesium production” using the Utah facility’s process.
The idea behind the Bevill Amendment was that mining companies shouldn’t face government oversight for “very large volumes” of waste that posed “relatively low” hazard. The EPA gave tentative approval in 1991 for the wording.
But, soon after, the Utah Division of Solid and Hazardous Waste began wrangling with the company over five waste byproducts and insisted they were not covered under the Bevill exclusion. By early 2001, the EPA had taken up the fight and filed suit.
One of the waste streams at issue is anode dust created after magnesium chloride is extracted from the lake and processed into magnesium and magnesium alloy often used as a metal strengthener. The dust contains dangerous byproducts, such as dioxins, hexachlorobenzene and polychlorinated biphenyls, which should be carefully handled and disposed of, the EPA contends.
And, while the EPA has used this lawsuit to address its concern about managing hazardous wastes under the federal law, it also has taken action against US Magnesium under the Superfund emergency cleanup law to address toxic waste already contaminating the site. The company is fighting the Superfund designation in the Washington, D.C., Circuit Court of Appeals.
fahys@sltrib.com