US Magnesium says it stopped building a retaining wall meant to keep toxic waste out of the Great Salt Lake because it’s no longer mining magnesium and therefore, according to the company, is not creating waste to mitigate.
State and federal agencies say that’s not how it works.
The wall is mandated as part of the company’s 2021 settlement with the U.S. Environmental Protection Agency. And with progress on the wall and other required work stalled, state officials successfully argued Friday that the mining company should be put under the control of a court-appointed receiver.
Third District Judge Charles A. Stormont signed an order Friday evening appointing John H. Curtis of Rocky Mountain Advisory, LLC, to “take possession of, use, operate, manage and control” US Magnesium. Receivers are neutral professionals generally assigned to run and safeguard the assets of distressed businesses.
The move “is intended to eliminate and remedy US Mag’s noncompliance with Utah’s environmental protection laws,” according to the complaint filed Friday by the Utah Division of Forestry, Fire and State Lands.
The division is tasked with managing the bed, banks and minerals within the brine of the Great Salt Lake. At its plant 40 miles west of Salt Lake City, US Magnesium has long mined minerals from salts extracted from the lake, as the sole producer of raw magnesium in the United States.
(Francisco Kjolseth | The Salt Lake Tribune) The smut and gypsum piles at US Magnesium, which has ceased operations at the magnesium plant on the western edge of the Great Salt Lake, is pictured on Thursday, Dec. 12, 2024.
The 2021 agreement, called a consent decree, requires US Magnesium to clean up past contamination, add a new filtration plant to treat wastewater and make other improvements to mitigate pollution and waste at its Tooele County plant. The “obligation to comply” with the deal “is not affected by the status of US Magnesium’s operation or production of magnesium,” said Katherine Jenkins, a public affairs specialist with the EPA.
Reached before the order appointing Curtis was signed, US Magnesium declined to comment on what it understood was required under the agreement, or whether it thought stopping construction would violate the consent decree. It’s company policy to “avoid debating regulatory issues in the press,” an email to The Salt Lake Tribune said.
(Read more: Why work has stopped on a wall to keep ‘highly acidic’ waste away from the Great Salt Lake)
It has not yet responded in court to the state’s lawsuit or the judge’s order.
The EPA had formally notified US Magnesium it was out of compliance with the consent decree in July, according to a copy of the letter filed in court. The EPA’s letter cites several issues:
- US Magnesium initially had to provide $10.6 million in “financial assurance” — such as a bond or an escrow account — that it could cover the costs of building the wall, making other required fixes to its waste pond area andeventually creating a salt “cap” to seal it. This spring, according to the EPA, the company missed an April 8 deadline to “appropriately adjust” the amount of its financial assurance based on updated cost estimates.
- It also hasn’t signed a required agreement to allocate rights and resources — to the EPA and others — in case the agency takes over and implements the plan to close and seal the wastewater area.
- The company missed a 2022 deadline to either stop using certain electrolytic cells, similar to tanks, for the electrolysis that splits salts into components such as magnesium, or install a specific new dust-control system for them. Despite an extension of the deadline, the EPA said, US Magnesium also hasn’t cleaned up a storage vault for dust generated by electrolysis.
- It also hadn’t started building the wastewater filtration system by an extended June 2023 deadline.
On May 22, the company informed the Utah Department of Environmental Quality that work on the retrofitted waste pond — including the submerged retaining wall — would not proceed on schedule, according to the EPA’s letter.
The completion of that work, the state argues in its lawsuit, “is critical to preventing uncontrolled releases of hazardous substances into Great Salt Lake.”
(Francisco Kjolseth | The Salt Lake Tribune) US Magnesium, which has ceased operations at the magnesium plant on the western edge of the Great Salt Lake, is pictured on Thursday, Dec. 12, 2024.
US Magnesium’s “intentional release” or discharge of hazardous materials and contaminants “are illegal and/or unauthorized actions that are continuing in nature,” the state asserts. They amount to “continuing illegal trespass” and a public nuisance, the complaint contends.
In asking for a receiver, the state argued that the company “is unable or unwilling to protect” the interests of the state and the public in the lake. Parts of the lake that are connected to US Magnesium’s historical operations and adjacent areas “may be further materially damaged if harmful contaminants and pollutants are not adequately sequestered and contained,” attorneys for the state wrote.
The judge’s order appointing Curtis instructs him to comply with the consent decree and to “abate and remediate” any nuisance or trespass caused by the company. Before taking action, he must post a bond and file an oath that he will responsibly carry out his duties.
The Utah Division of Water Quality is overseeing the required reconstruction of US Magnesium’s waste pond. Reached before the receiver was appointed, Director John Mackey said the division would work with the company to expedite work as much as possible.
US Magnesium has missed deadlines in permits for the second phase of the project, Mackey said, but he added that the company could get caught up to some of the milestones in later phases “if they could get back to work soon.”
“It’s our goal to get the project done. We will work with them,” he said. “We will work with them and encourage them, try to understand the problems that lead to delay and try to help them adjust.”
The company stopped magnesium production in September 2022, it has said in court documents, and equipment failures the previous year had curtailed production even earlier.
Last month, US Magnesium announced it was also stopping lithium mining from its waste piles and laying off 186 workers, citing dropping lithium prices. The company did not answer a question about whether the lithium mining added any water to the waste pond.
That matters because adding water to the pond could make the chemicals that are otherwise somewhat stagnant move toward the lake more quickly, Mackey said.
“The nature of the chemicals of concern is that they are sticky,” he said. “They like to hang onto soil better than be attracted into the water where they can move away. They are relatively fixed.”
(Francisco Kjolseth | The Salt Lake Tribune) The retrofitted waste pond at US Magnesium, which has ceased operations at the magnesium plant on the western edge of the Great Salt Lake, is pictured on Thursday, Dec. 12, 2024.
Chances are “very low” that the chemicals will expand from the waste pond toward the lake while US Magnesium is not operational, Mackey said.
The state and federal agencies are monitoring groundwater in the area to make sure contamination doesn’t “significantly spread or increase,” Jenkins said in an email.
The wall construction contractor, Forgen LLC, stopped work in November 2024 after US Magnesium failed to pay its bills and accumulated $5.8 million in debt, a lawsuit alleges. The Colorado contractor is one of seven companies to sue this year for contract violations or nonpayment.
In an earlier statement to The Tribune, US Magnesium President Ron Thayer said the company “cannot provide comments on ongoing legal action related to other matters.”
He had explained that the company was “no longer generating consent decree related wastes,” and added: “The work requirements specified in the consent decree involve modifications to magnesium related processing units that are not operational. As such, this work would have no benefit.”
Retaining wall construction “has been temporarily delayed due to the magnesium system shutdown,” he added. “In regard to environmental impact, US Magnesium has not detected any contaminant migration from our impoundment area,” referring to the waste pond region.
This story is developing and may be updated.
