State denies any cover-up over Kennecott tailings pond

0 Comments | Deseret News (Salt Lake City), Mar 28, 2008 | by Stephen Speckman Deseret Morning News

A 1997 Kennecott Utah Copper document suggests that the state and Kennecott were part of a conspiracy to cover up evidence about potential seismic weakness in a now-retired tailings pond.

The document focuses on the potential problems that could be caused by a major earthquake, especially with the southeast corner that is known as the Magna Corner, as identified in a 1988 study. It also raises concerns about the apparent intentions to keep secret the risks for residents of nearby neighborhoods.

But David Marble, an assistant state engineer over dam safety in Utah, said Thursday before a meeting with residents in Magna that he isn't convinced there was a cover-up in the sense that officials with Kennecott and the state were actively trying to keep information about the tailings pond risk from others. Marble suggested that if anyone along the way had asked the right questions about the seismic instability, the state or Kennecott would have answered them.

"I really don't think there was any kind of cover-up at all," Marble said. "I believe people involved had the public interest at heart."

Marble has been state director over dam safety since 2004, but he was in the dam design, construction and safety business in the early 1990s when Kennecott's south impoundment was being upgraded, and he knew people working on the project. The state's job then, as it is now, is as a technical review and regulation agency.

"I don't set their public policy," he said about Kennecott and its relationship to state inspectors. "I don't accept their liability. I am the regulatory oversight ... we do safety inspections."

He said Kennecott identified the problem, came up with a solution and fixed the Magna Corner, a portion of which could still liquefy and send tailings flowing across the road. He said it isn't now -- nor was it in the early '90s -- his office's job to tell people what could happen to the Magna Corner in the event of a big earthquake.

There is an inherent risk with any dam, he said, a word he noted multiple times should no longer be applied to the Magna Corner and the embankment that comprises the south impoundment. But if a 7.0 magnitude earthquake did hit the Salt Lake area, the risk of failure would be significantly less today.

"I have absolutely nothing to hide," Marble said. "I think the public and state officials and everyone will be comfortable with where the dam safety program is and what's being done."

The south impoundment still contains mine tailings, and does get inspected, according to both state and Kennecott officials. But the state's focus is on the newer north impoundment, which holds mining waste and water.

The 1997 document, written by former Kennecott chief legal officer Ray D. Gardner, does highlight seismic stability problems with the old 5,700-acre south impoundment's southeast corner, a section of the now-retired tailings pond. According to Gardner's findings, the impoundment failed in 1941 and 1964, each time due to water intrusion.

The Gardner document also says that in 1989 Frank Joklik, then- Kennecott president, disagreed with a suggestion that Kennecott should disclose to Magna residents the apparent seismic risk at the tailings pond. Gardner wrote that Joklik felt disclosure would cause "panic and suits."

Still, Gardner concluded in 1997, "Prior management's decisions to disregard and conceal legal advice, forgo public notice, attempt to establish a residential buffer surreptitiously, collude with the state engineer to withhold the KL studies from the public, and restrict the distribution of the Reduction Study, collectively and individually, give the appearance of a conspiracy to cover up a profound threat to public safety."

Lisa Roskelley, spokeswoman for Gov. Jon Huntsman Jr., said Thursday that the governor is committed to the health and safety of all Utahns and that state regulators will continue working with Kennecott and Magna officials to ensure the safety of the city's residents.

Utah Attorney General Mark Shurtleff's spokesman Paul Murphy said officials in his department have been talking this week about whether an investigation into Kennecott's past and the alleged cover- up issue is needed at this point, who would initiate and handle such an investigation, whether it would be a criminal or civil matter or even if the attorney general should be involved at all.

Gardner also wrote about how Joklik authorized his company's land arm to begin buying up houses that appeared to be most at risk from a flow of tailings if the earthen embankment at the Magna Corner failed during an earthquake.

Marlene Norcross, who did not want to sell at the time, said Thursday that her main concern at the time was getting Kennecott to control the problem with blowing tailings dust that would turn day into night on windy days. What might happen to the tailings in a strong earthquake was less of a concern to her than the impact of the quake on her home.

"I figured I be buried by a rock," she said about liquefication that would come with a strong quake.