Utah officials have given a Canadian company the green light to begin mining oil sands on a remote plateau in Eastern Utah without first obtaining a pollution permit or monitoring groundwater quality, an action that sets the stage for a possible court battle over the fragile region.
The board of the Utah Division of Water Quality agreed with Calgary-based U.S. Oil Sands ' contention that there was little or no water in the area of the company's proposed mine site and affirmed the agency's earlier decision not to require the permits or monitoring.
The board's 9-2 vote Wednesday caps years of wrangling with the water agency over U.S. Oil Sands' proposal to open the first large-scale oil sands mine in the United States in the Book Cliffs, an area renowned for its abundant wildlife but also dotted with occasional oil and gas wells.
Two environmental groups—Living Rivers  and Western Resource Advocates —sought the review as part of their effort to prevent the oil industry from becoming established and opening up bigger operations in the largely unspoiled region.
John Weisheit, Living Rivers' conservation director, and Rob Dubuc, a staff attorney for Western Resource Advocates, said they were disappointed by the decision and will likely take their objections to the project to the Utah courts. Living Rivers has dogged U.S. Oil Sands for years over its mining plans.
Click here  to view a slideshow of the U.S. Oil Sands test pit in eastern Utah
Cameron Todd, U.S. Oil Sands' chief executive officer, said the company isn't concerned about a possible court fight other than the delays it might cause.
"We don't ever look at it as a fight," he said in an interview. "Rather we look at it as the company being subjected to another thorough review that will show we have a project that is of the highest industry and environmental standards."
Todd said the water quality board's decision was "basically as expected and as supported by the evidence."
The board as well as officials of the Water Quality Division wrestled with the question of how much water is to be found in this semi-arid region, which gets an average of 12 inches of precipitation a year.
U.S. Oil Sands contended there is none.
Chris Hogle, an attorney representing the company, told the board that water quality officials and U.S. Oil Sands hydrologists had "traipsed" over the PR Spring mine site for years searching for water.
"They didn't find any," he said. "What water there is is disconnected from the mine site and will not be impacted."
Dubuc, the lawyer representing Living Rivers, said even small seasonal amounts of water and water on adjoining land need to be protected.
"What we are asking for is a more rigorous monitoring of this mine," Dubuc told the board. "At the end of the day, we don't know what the effects of this mine will be unless we do the monitoring.
"If any mine operation should be comprehensively monitored this is it. This is the first of its kind and we should be conservative on how we approach this."
During the 90-minute hearing in Salt Lake City, the board seemed comfortable with water quality officials' assurances that they could step in at any time and require the permits and monitoring if they detect changes in water amounts or if the processing of the oil sands appeared to having a harmful effect on the environment.
But no monitoring is contemplated at this time, said Walt Baker, director of the Utah Division of Water Quality.
In an interview with InsideClimate News, Baker said he is convinced there isn't enough water to worry about.
"At this time there hasn't been evidence of water or a risk to any water sources," he said.
Still, Baker said the agency is sensitive to the issues raised during Wednesday's hearing and during the lengthy challenge brought by Living Rivers. The Water Quality Division could conduct onsite inspections following heavy rains or during periods of snow melt, he said. It also could monitor the mine’s waste sites once the operation is underway.
"I think there is still a window open to discussion about monitoring," Baker said, although he isn’t sure how it would work or exactly what standards might be set.
In 2010, U.S. Oil Sands won permits from Utah Division of Oil, Gas and Mining to mine nearly 6,000 acres for bitumen, a thick, tarry substance ripped from the earth in clay-like clumps and then refined into oil. The company has scooped open a two-acre test pit and plans to mine an initial 213-acre site to extract bitumen for refining into oil beginning in 2014.
In rejecting arguments by Living Rivers and Western Resource Advocates, the board agreed with the Water Quality Division's opinion that there is so little groundwater within 1,500 feet of the surface of the proposed mine that additional safeguards aren't needed.
The company said it has drilled 180 holes 300 feet deep—and has sunk four dry wells of more than 1,500 feet deep—without hitting water. A fifth well hit water at 1,800 feet, and that water will be used in the mining process.
In reaching its conclusion, the board endorsed the recommendation of an administrative law judge  who had earlier conducted a hearing into the environmental group's challenge.
"Substantial evidence ... supports a finding that groundwater has not been located and may be assumed absent in the project area except for a deep regional aquifer," Judge Sandra Allen said in her 40-page recommendation released in August. "The PR Spring facility and operations will have no more than a de minimis [minimal] actual or potential effect on ground water quality."
U.S. Oil Sands' Todd said Wednesday's ruling vindicated not only the company's position that there is no water to contaminate but also reaffirmed the company's commitment as a developer sensitive to environmental issues.
"This issue has gone through a very thorough review at many levels and at each turn it was determined that the U.S. Oil Sands operation did not pose a threat to water of any kind," he said.
Dubuc said the decision was based on an ill-defined characterization of groundwater by the various agencies involved in the review and permitting process. The division of water quality's definition was too vague and consequently open to too much interpretation, he said.
"If you use the wrong definition of groundwater then it's impossible to get the right answer," he said.
Further he said he thinks Utah regulators are reluctant to regulate business no matter the consequences.
"The politics of this state is 'we are open for business' and it is not going to change," he said. "The state has to be willing to regulate or face some unintended consequences to this mining."
Living Rivers Conservation Director Weisheit said he was perplexed by the decision.
"Why do you think the area is named PR Spring? Because there is water there," he said.
He criticized the board for sitting in a conference room and not taking the initiative to visit the area. If they made the trip, Weisheit argued, they could see the water flowing from a spigot at PR Spring about a mile from the proposed mine.
"They think tar sands is more important than water," he said, "and that's from an agency that’s supposed to be concerned with water."