Tenth Circuit Hears Arguments Over U.S. Magnesium RCRA Exemption

Yesterday, oral argument was heard in the U.S. Court of Appeals for the Tenth Circuit in Denver over whether U.S. Magnesium in Utah should be exempt from the requirements of the Resource Conservation and Recovery Act (RCRA). The presiding panel consisted of Judge Tim Tymkovich, Judge David Ebel, and Judge Neil Gorsuch. (For those inclined to read the tea leaves, this panel is a good draw for U.S. Magnesium: Judges Tymkovich and Gorsuch are both conservatives appointed by George W. Bush, and Judge Gorsuch is also the son of Reagan-era EPA Administrator Anne Gorsuch. Judge Ebel is a Reagan appointee, and a fierce and rigorous voice on the bench.) The Salt Lake Tribune has an excellent short account of the arguments here.

As the article explains, "Utah regulators have been at odds with US Magnesium since at least 1992. The company extracts brine from the Great Salt Lake, and in its magnesium-production process releases a host of chemicals into the air, unlined ditches and a retention pond at the plant . . .In 2001 the EPA stepped in, filing a $1 billion lawsuit against the company after state authorities turned the case over to the federal government." The district court sided with the plant, and yesterday's arguments were part of the U.S. appeal of that decision.

U.S. Magnesium is arguing that Congress granted it an exemption from the Act in 1989. The U.S. is arguing that the company has far exceeded the scope of any exemption, and has taken the position that "Anything generated [at the plant] can be poured down the drain."

Making the battle a little more epic and entertaining (ok, well, maybe entertaining only for environmental law junkies), EPA declared the plant's location a Superfund site on November 4, due to high levels of arsenic, chromium, mercury, copper, zinc, acidic waste water, chlorinated organics, polychlorinated biphenyls (PCBs), dioxins/furans, hexachlorobenzene (HCB), and polycyclic aromatic hydrocarbons (PAHs) in the water and soil surrounding the plant. (You can view EPA Region 8's announcement of that listing here, and the Salt Lake Tribune's article on the listing here.) U.S. Magnesium apparently plans to contest that decision, as well.