The debate over whether oil sands mining should be allowed in Utah inched forward this week when an environmental group and the company that wants to open the mine both filed papers responding to a judge's recent ruling on whether water resources will be adequately protected.
Administrative Law Judge Sandra Allen ruled on Aug. 28  that the Utah Division of Water Quality  acted legally when it decided that U.S. Oil Sands Inc.  should not have to conduct water monitoring or obtain a pollution permit to begin mining on Utah's Colorado plateau, an arid region dotted with oil and gas wells and used by hikers and hunters.
On Wednesday Living Rivers , a Moab, Utah-based environmental organization, submitted a 22-page brief  arguing that the judge erred when she determined that the only water deserving of protection is found in deep aquifers and that there is so little water close to the surface that it does not qualify for protection under Utah law.
Rob Dubuc, a staff attorney for Western Resource Advocates , which is supporting Living Rivers' efforts to halt the project, said all that's needed to settle the issue is to look around the mine site and the entire Colorado plateau.
"What you see—the wildlife, the grass, the brush—means there has to be water," Dubuc said. "There is nothing in the statutes that talks about how much water, just that all water must be protected."
U.S. Oil Sands also filed a brief on Wednesday —supporting the judge's decision. The company plans to begin mining its first 213-acre site in 2014.
Click here  to view a slideshow of the U.S. Oil Sands test pit in eastern Utah
The judge was "scrupulous" in her findings that the company's PR Spring mine would have no more than a minimal effect on ground water quality, according to the four-page document filed by the Alberta, Canada-based company.
"Even if ground water existed in sufficient quantities to be impacted, Living Rivers still could not support its allegations that the PR Spring mine will have a greater than de minimis (minimal) effect on ground water quality," according to the document.
Glen Snarr, U. S. Oil Sands' president, declined to comment Wednesday because he hadn't yet reviewed the Living Rivers document.
InsideClimate News reported last month  that Utah has 232,065 acres of land open for oil sands mining, and that mining regulations for state-owned land are less stringent than those for federal land.
State mining regulators have given U.S. Oil Sands permits to rip open nearly 6,000 acres of state-owned land in the Book Cliffs region of the Colorado Plateau, about 70 miles north of Moab. The company has already scooped open a two-acre test pit and drilled a number of wells searching for water to use in the extraction process. So far, it has found water only in very deep aquifers, between 1,500 and 2,000 feet below the surface.
Oil sands mining is controversial because it requires strip mining large sections of land and uses large amounts of water and energy to process the material into bitumen, a thick, tarry substance also known as tar sands oil.
In 2010, the Utah water division found that there was little ground water within 1,500 feet of the surface of U.S. Oil Sands' proposed mine site. Based on that conclusion, the water agency granted the company a mining permit without requiring the safeguards.
Living Rivers and Western Resource Advocates asked the board of the Water Quality Division to review that decision, and the board asked the administrative law judge for her recommendation. Now the board will weigh the judge's recommendation, as well as Living Rivers' petition objecting to that recommendation. The board could make a final ruling on the mining permit as early as Oct. 24.
Living Rivers and Western Resource Advocates argue there is "ample evidence to indicate that there is ground water at the site," including findings by Utah water quality officials who did a study of the area, according to the response.
"(The judge's) order does not address whether there are any accumulations of underground water at the mine site or even if there is any perched ground water at the mine," according to the document.
The Living Rivers' response also makes several other arguments to support its position that the water quality division mistakenly granted the mining permit, including overlooking the harm caused by discharging waste from the refining process back into the mine pits.
After the judge ruled in U.S. Oil Sands' favor, company executive Cameron Todd said the ruling vindicated not only the company's position that there is no water to contaminate but also that its mining process is environmentally friendly. The company said its extraction process will recycle much of the water and will not leave behind the pools of toxic waste often associated with oil sands mining.
Even without the pollution permit and added ground water monitoring, Walt Baker, director of the Utah Division of Water Quality, has pledged to continue monitoring the project and to impose the additional requirements if necessary.