SUPERFUND:

Court split on Utah company's bid to leave EPA cleanup list

The operator of a Utah magnesium plant met with a mixed response before a Washington appeals court today over its argument that the facility should not be included on U.S. EPA's list of Superfund sites.

Although one judge on the three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia appeared sympathetic, the two others seemed less inclined to rule against EPA.

U.S. Magnesium, which operates the plant on the shores of the Great Salt Lake an hour from Salt Lake City, maintains that EPA acted unlawfully when, in 2008, it included the plant on its National Priorities List. The listing, which covers sites in need of long-term remediation, is authorized under the Superfund law, officially known as the Comprehensive Environmental Response Compensation, and Liability Act (CERCLA).

The bulk of today's argument focused on whether EPA correctly followed its own procedure, known as the Hazard Ranking System, when it combined various sources of potential pollution, including a smoke stack and a waste pond, when calculating risk factors. The site occupies 80,000 acres of land in total.

The company's principal lawyer, Laurence Kirsch of the Goodwin Procter law firm, argued that, taken separately, each of the sources does not meet the requirements needed to be listed as a Superfund site.

Of the three judges, Chief Judge David Sentelle was most supportive of the company's position, raising questions about EPA's decision to include the different sources in one calculation. "Does it make any sense?" he said.

Judge Stephen Williams saw it differently, noting it was possible EPA did follow the regulations correctly and that U.S. Magnesium's problem could be with the regulations themselves.

In Williams' reading, "you run the numbers and you come up with a number that puts your site on the list," he told Kirsch.

The third judge, Merrick Garland, then chimed in, saying U.S. Magnesium was likely barred from challenging the EPA regulations, rather than how they had been interpreted, because it had not raised that argument earlier.

On a separate question, U.S. Magnesium has also challenged whether EPA correctly concluded that the plant was in a "sensitive environment" because two bird species known to live nearby, the white-billed curlew and the American white pelican, have been listed as under threat by the state of Utah.

Sentelle was again inclined to agree with the company's position. In a lengthy exchange with Justice Department attorney T. Monique Jones, he noted that although the birds are listed by Utah, they are not designated as either "threatened" or "endangered," the terms usually used under federal law, as defined by the Endangered Species Act.

Sentelle said he had "a real problem" with EPA's argument on that issue.

At the time of the proposed listing, EPA received more than 115 comments in support, government lawyers noted in court filings.

Utah did not oppose the listing, although some state legislators and local politicians did.

The dispute is just one prong of a multifaceted legal battle that has been going on for two decades. The plant has been in operation since 1972.

Most recently, in a separate case, the 10th U.S. Circuit Court of Appeals ruled in favor of EPA in August over its ability to regulate hazardous waste at the site under the Resource Conservation and Recovery Act.

In court papers, Kirsch said the Superfund listing was "the latest of EPA's seemingly endless efforts to throw its vast governmental resources toward the wrongful pursuit" of the plant.

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