Natural Resource Damage Claim and Settlement In the late 1980’s the State of Utah became aware of potential impacts to ground water in the area of the Southwest Salt Lake Valley.  Subsequent investigations by the State assessed that there was an injury to the ground water resulting from the release of hazardous substances from Kennecott’s (Kennecott Utah Copper Company) milling and mining operations located in the Bingham mining district. The State filed an initial claim against Kennecott in October 1986 in order to preserve its resource damage claim under the then existing statute of limitations even though a five year study was underway to evaluate the existing and potential impacts to the ground water.  The Federal District Court (since the action by the State was pursued under CERCLA § 107(a)(4)(C), 42 U.S.C. § 9607(a)(4)(C)) stayed the action until the completion of the five year study and gave time to the State and Kennecott to negotiate a settlement.

An initial settlement was filed with the court in 1991 but was subsequently found substantively deficient in three major areas, 1) lack sufficient foundation for the State’s determination that its ground water natural resource cannot be restored, 2) failed to require substantial protection of the State natural resources from further contamination, and 3) failed to apply the proper measure of damages which resulted in failure adequately to take into account the extent of the damages the State has suffered and would suffer as a result of the contamination. In August of 1995 the State’s Natural Resource Damage Consent Decree with Kennecott and the Salt Lake Valley Water Conservancy District (as an intervener plaintiff) was entered by the Court. The 1995 NRD CD required Kennecott to:

• • Conduct and complete the RI/FS in accordance with the work plan approved by the State and the EPA
  • Begin extracting ground water from the low pH/heavy metals plume (acid plume) of Zone A by drill a well(s) and equipping the well to extract at a rate of at least 1,000 gallons per minute and to deliver the extracted water to the leach water handling system (rate would remove at least 400 acre-feet of contaminated water per year)
  • Complete additional source control measures specifically described as the eastside collection system and the Bingham Creek cutoff system
  • Establish a Trust Fund (with the State Trustee as the beneficiary) in the amount of $37M (comprising a $9M cash payment and $28M letter of credit) to be used to “…restore, replace or acquire the equivalent of the surface or ground water resources for the benefit of the public in the Affected Area”.

After the completion of the RI/FS in March 1998, the State, Kennecott and the Jordan Valley Water Conservancy District (formally the Salt Lake Valley Water Conservancy District) began to evaluate a proposed ground water treatment project to make use of the Trust Fund.  This evaluation effort extended from 1999 onward past Governor Leavitt’s term in office.

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