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JUDGE BLASTS UTAH OVER OFFER TO SETTLE SUIT WITH KENNECOTT

A federal judge has criticized the state for entering into a settlement with Kennecott over damage to local underground water without first properly measuring the extent of the damage.

But the state and Kennecott say they are about to do just that. The mining company has been negotiating with the state and the Environmental Protection Agency over a study that would analyze the damage Kennecott has done to local water supplies. The mining company will also study ways to clean up the water.But both Kennecott and the state believe cleaning up local underground water supplies is not feasible.

On Friday, U.S. District Judge J. Thomas Greene rejected Kenne-cott's offer of a $12 million cash payment to the state for damage it did to the water through decades of mining.

Greene criticized the $12 million agreement hammered out between the state and Kennecott for not including cleanup plans. Removing salt and minerals from under ground water could cost in the hundreds of millions of dollars, according to Ken Alkema, director of the Utah Department of Environmental Quality Control.

Greene noted that estimate in Friday's ruling and concluded that the $12 million offer fell far short of paying for damage Kennecott has done in Utah.

But Assistant Utah Attorney General Fred Nelson said Kennecott would be paying much more than that. Although Kennecott wanted to pay $12 million to Utah for water damage, the EPA may force the mining company to pay millions more to clean up its property.

The EPA wants Kennecott to clean up at least 20 above-ground sites with hazardous material on them, Nelson said. The sites are scattered from the Great Salt Lake to the north smelter and include much of the Oquirrhs, he said.

Kennecott has agreed in principle to do that.

The EPA may also require Kennecott to thoroughly measure damage to underground water, Nelson said. That's the kind of assessment Greene said the state should have required before negotiating the $12 million settlement with Kennecott.

Greene's rejection of the proposed settlement between the state and Kennecott shows that the Utah attorney general's office wasn't looking out for the public, said Douglas Parry, attorney for the Salt Lake County Water Conservancy District.

The district filed a federal lawsuit a year ago challenging the proposed settlement and asking the court to reject it.

Greene's ruling is a victory for the small company, Parry said. "It proves the system works. Someone is finally saying, `No, Utah, you can't have sweetheart deals with all of these large companies,' " he said. "Someone has got to step up and say, `You can't destroy our state.' The conservancy district did that.

"Maybe the message will get through to the Utah attorney general's office and other state agencies that somebody has to look out for the people of this state," he said. "If a company contaminates this state, they have to step forward and be responsible for it. They have to clean it up."

But state attorneys say the $12 million settlement was only one prong in multipronged effort to deal with Kennecott's contamination of Utah. A second prong - ongoing negotiations in Denver with the EPA - may yet prompt a massive cleanup of the underground water supply.

Attorneys with the EPA, Kennecott and the state have been meeting in Denver two days a week to negotiate a plan to clean up Kennecott's land and study underground water damage, Nelson said.

Since this is what Greene wanted, the state may try to find a way to dovetail the EPA negotiations with the state's lawsuit against Kennecott. "If the EPA gets an agreement from Kennecott it is satisfied with, maybe the court will join the two," Nelson said.

The state sued Kennecott for $129 million in 1986 for damage the mining company did to underground water. The $12 million settlement would have resolved the suit before trial.

Greene's ruling Friday, however, means the 1986 case goes to trial or the state starts over in negotiating a solution with Kennecott.

The state could also ask the 10th Circuit Court of Appeals to overturn Greene's decision. But the attorneys for the conservancy district think Greene's ruling is appeal-proof.

"There isn't a chance on this planet that ruling can be appealed," said Dale Gardiner, attorney for the conservancy district. "That appeal would come back like a congressional check."

In his ruling, Greene also authorized the conservancy district to participate in the state's 1986 lawsuit. That means Kennecott must negotiate a settlement with both the state and the conservancy district.

That ups the ante. The conservancy district isn't likely to approve anything less than $40 million. The district - unlike the state - believes Kennecott must clean up the damaged water, a move that will cost between $40 million and $115 million, district officials say.

Meanwhile, above-ground hazardous material on Kennecott property continues to pollute underground water with minerals and salt - a problem that won't go away anytime soon. The EPA, Kennecott and the state announced in June that Kennecott will clean up its property, and they said plans for the cleanup would be finalized by December.

However, negotiations are going slower than expected, Nelson said. "We are dealing with EPA headquarters. They have five or six layers of officials that have to approve of everything. But we have set some time schedules. We will do our best to meet them."

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(Chart)

Color map

Kennecott water pollution

A federal judge Friday overturned a proposed settlement between the state and Kennecott, saying the area of contamination appears to be much larger than what the state suggests.

-Area state believes contaminated by Kennecott, saying the area of contamination appears to be much larger than what the state suggests.

-Area SLC Water Conservancy District believes is contaminated.

(See microfilm for complete map.)