Community groups rally to get state to reconsider mine action approval

How will future talks be structured?

Town of Crested Butte officials felt more than a little tricked the day after Halloween when they learned on Friday, November 1 that Mt. Emmons mine company owner U.S. Energy had quietly received approval from a state agency to literally put a plug in the current molybdenum mine exploration activity and walk away from the existing wastewater treatment plant.

As of Tuesday, the state had “suspended” that approval and will reexamine the application, taking into consideration any new “readily available” information that is pertinent to the application.
Under the Colorado Department of Public Health and Environment Voluntary Clean-up Program (VCUP) application, U.S. Energy proposed capping the current mine adits (shafts), reinforcing the existing tailings ponds and utilizing passive water treatment systems. They would then demolish the current wastewater treatment plant.
Their argument for the course of action is that the contaminated water coming from the old Keystone Mine site would be plugged into Mt. Emmons (also known as Red Lady) and the wastewater treatment plant that purifies Coal Creek would no longer be needed.
The state received the application on September 13 and approved the request on October 22.
“Any site can come through the VCUP program as long as it meets the eligibility requirements,” explained CDPHE Superfund/Brownfields unit leader Doug Jamison. “Based upon information provided, CDPHE has determined the site meets program eligibility requirements. We have approved and implemented several VCUPs on mining-impacted properties throughout Colorado. The program applies to contaminated or potentially contaminated properties that fall outside the jurisdiction of other regulatory authorities. If statutes or regulations other than the Voluntary Cleanup Act can be applied to a site, the site is not eligible for the Voluntary Cleanup Program.”
Upon learning about the September approval on Friday, the town, along with representatives of the High Country Citizens’ Alliance, the Red Lady Coalition (RLC), Gunnison County and various other state officials, sprung into action to lobby the state for a reversal of the administrative decision.
That reprieve came Monday after a conference call with the CDPHE and representatives from the town, the environmental organizations, Gunnison County, U.S. senator Michael Bennett’s office and the governor’s office.
“The approval has been suspended pending further review,” said CDPHE community involvement manager Warren Smith on Tuesday. “We have notified U.S. Energy of the decision by phone and they should receive a letter this week. We will be evaluating the new information and community input. We can look at other readily available information. Some factors could lead us to void the previous approval.”

The town’s view of things
Crested Butte town manager Todd Crossett addressed the situation at Monday’s Town Council meeting to an audience of approximately 20 concerned citizens. “The VCUP application was submitted without town knowledge to the state on September 13 and approved September 22 with very little input,” he said. “The decision was made in a box with no notice given to interested parties. We had an extremely inclusive meeting this morning. Everyone rallied pretty quickly to talk to the CDPHE. Some things in the U.S. Energy application weren’t quite right. Information was incomplete and maybe even misleading. The officials said they were going to pull the approval in order to gather information and relook at the decision. The outcome was good.”
Crossett said the state was making the application public “and everyone will now have a chance to weigh in on it. Experts can take a look at it. We will be heard. It is possible the VCUP process isn’t even applicable for a number of reasons. There are a lot of moving parts and a lot of unanswered questions. One thing that’s important to know is that the town was not part of the application process.”
Crossett said the town has been in discussions with U.S. Energy for months to see if there is a way to come to “a mutually acceptable plan to move forward to get U.S. Energy out of Mt. Emmons and get the concept of a molybdenum mine to go away. One of the things discussed at some point was the VCUP process option.
“When asked if we would support the idea, we said we would need a third-party independent analysis,” Crossett continued. “We also would need HCCA and the Red Lady Coalition to be part of it, along with the public. The conversation on the idea was dropped at that point. U.S. Energy then filed the application. It appears the state misjudged the size and complexity of the issue. The good news is there are a lot of eyes all over the state on this right now.”
Mayor Aaron Huckstep said the filing by the mining company “changed the ability of the council to discuss the issue in public.”
HCCA executive director Greg Dyson said his group sent a letter of concern over the VCUP issue to several elected and regulatory officials. “HCCA appreciates the cooperative relationship it has had with the town over the years,” he told the council. “We feel the state is listening to us, after the fact. We will work diligently to get the VCUP withdrawn. And we want to re-establish the good working relationship with the town in the effort to save Red Lady.”

The company’s view
U.S. Energy President and COO Mark Larsen responded late Wednesday to an email request for a comment saying that the company’s proposal will enhance the mine site’s environmental quality.
“The historic Keystone Mine site is a legacy mining property, where lead, silver and zinc mining occurred by multiple individuals and companies beginning as early as 1881,” Larsen wrote. “The Colorado VCUP process is a well-established statutory program designed to provide protection of human health and the environment and to allow landowners to undertake the voluntary clean-up of contaminated sites. The program is intended to eliminate impediments to the sale or redevelopment of contaminated sites, and the process is to encourage and facilitate prompt clean-up activities.
“It is important to note that the historic Keystone Mine site is in full compliance with all environmental standards,” Larsen emphasized. “U.S. Energy’s VCUP proposal for the historic Keystone Mine is a voluntary project that will greatly enhance environmental quality through a proven site remediation and water treatment approach.”

Questions from the public
Local attorney Jim Starr posed three questions to the council. When did the council start talking about a possible VCUP with the mining company? Who first suggested a VCUP? What was done by the town to give the impression that the town supported a VCUP?
The council responded to the questions after an executive session.
Huckstep said the council’s recollection was that the VCUP idea first surfaced in June 2013. “We can’t really recall who came up with the idea or why anyone would think the town supported the idea. There was a lot of brainstorming going on. We made it very clear we couldn’t support the idea without more participation by HCCA and the RLC and expert third-party analysis.”
Coal Creek Watershed Coalition president Steve Glazer offered the services and expertise of the organization in future discussions.
Local businessman and HCCA board member Arvin Ramgoolam said he applauded the hard work of the various groups coming together in a short time period to solve the surprise issue. “It shows the value that comes with including as many parties as you can in future discussions,” he said.
“Thanks for rallying quickly,” added citizen Glo Cunningham. “I appreciate that it’s all out in the open now.”
“I think that is a relief to all of us as well,” said Huckstep. “I’d like to see U.S. Energy engage the community in an open and honest dialogue.”
“When I heard about this on Friday, I was livid,” relayed Councilperson Jim Schmidt. “I felt U.S. Energy did a great discourtesy to us by not letting us know about their application.”
“It was a very difficult weekend,” added Councilperson David Owen. “There was lots of emotion. I was stunned, angry and shocked. That turned into despair. I feel good with where we are headed now.”

Who will represent the town in the future?
When it comes to future discussions with the mining company, Owen wants the staff to carry the bulk of the heavy lifting. “I think there should not be a councilmember as part of the negotiating team,” he said. “The town manager and town attorney should be the main negotiators and it should be an open process with our partners HCCA and the RLC at the table every step of the way. I feel like the process up to now was a faulty process that led to this nasty surprise this weekend.”
Councilperson Shaun Matusewicz agreed. “But some good has come out of this. HCCA and the RLC are now at the table. It will be a more open process.”
Outgoing Councilperson John Wirsing took the other side. “I like having someone on the council being part of the conversation,” he said. “I don’t think the talks we had were a failed process. It is better to be talking to our neighbors. There was nothing we could have done to change their behavior. But having discussions is better than not.”
“I agree. Keeping the phone lines open is good,” said Councilperson Roland Mason. “Having a council representative at the talks is good.”
“Having three people involved is better than two,” added Schmidt. “It is appropriate to have a council representative there. It is important to keep communication open but I’m pissed they didn’t communicate.”
“It’s been a challenging year,” admitted Huckstep. “After the land exchange idea lost steam a year ago I think everyone wanted to continue communication. I can say that over the last four days, working with Todd has made me confident in his abilities. He’s a good strategic thinker.”
“Having talks without our partners at the table was a wrong decision,” said Owen. “[U.S. Energy] used that to divide and conquer the community. As for letting one councilperson know more than the rest is an issue because we govern as a body.”

Were these “talks” or “negotiations”?
In response to a question by Dan Jones about understanding the good faith aspect of the current negotiations, Huckstep said using the term “negotiations” to describe the interaction between the town and the mining company was probably too strong. “We did a lot of listening,” he explained. “It was a lot of throwing things against the wall to see what sticks.”
“We understand that corporations have one goal, which is to make their shareholders rich,” said Schmidt. “They never showed anything different.”
“No one from the town gave away grandma’s secret recipe,” assured Crossett. “The town wasn’t compromised.”
“We sent a pretty strong message this morning with the state,” said Huckstep. “But in my opinion, it is always worth engaging.”
Resident Tyler Lucas asked if other ideas beside the VCUP plan that might surface were brought up in the brainstorm sessions.
None were mentioned. “As presented, the VCUP hasn’t cleared the bar. It might eventually be part of a bigger plan but there are a lot of holes in it,” said Crossett.
Starr suggested the town and local groups hire professional negotiators to deal with U.S. Energy and any movement toward a permanent solution.
Citizen Laura Yale asked how the town got in the situation to be the primary communicator.
Town attorney John Belkin gave some history of the talks and explained how U.S. Energy became upset with some HCCA actions in 2010 and so refused to talk to anyone from the town if HCCA participated. “We tried many times to get HCCA back to this magical table,” Belkin said. “But U.S. Energy wouldn’t have it.”
Crossett said that since he’s been town manager, talks have always included himself, the mayor and the town attorney. “I know it’s suspected that there was an individual acting on his own, but that hasn’t been the case,” he said.
When Jones asked if the transfer of mineral rights was part of the talks, Huckstep and Belkin said absolutely. “That has always been underlying any discussion with them since long before this council started talking to them,” Belkin said.
“Unless we could ultimately control the minerals, there was no reason to have any conversation,” said Huckstep. “A fundamental piece was to resolve the mineral issue. Given the efforts of the last four days, I still hope there can be some discussion.”
And with that, the discussion on U.S. Energy and Mt. Emmons concluded at the council meeting.

Next steps at the state level
As for what’s next at the state level, CDPHE Remediation Program manager Monica Sheets said, “We will be evaluating new information and community concerns, and will make a determination based upon what we learn. To be approved, any plan must be deemed protective of existing and proposed uses of the site and must not pose an unacceptable risk to human health and environment at the site.”
According to the state agency, factors that can lead the department to void its previous approval of an application include:
—A determination that a site does not meet program eligibility requirements;
—A determination that the proposed remediation would not be protective of human health, the environment or existing or proposed uses at the site;
—Submission of materially misleading information by the applicant; and
—If a voluntary clean-up plan is not initiated within 12 months and completed within 24 months after approval, unless an extension is granted.