Mining company suffers court loss

“It’s a significant win to get”

In a big legal victory, local water advocates got the go ahead to continue a push to make the state’s Water Quality Control Division reconsider a permit requirement that could have a Mt. Emmons mining company putting up money to ensure the area’s drinking water stays clean.

“It’s a significant win to get over the first hurdle, which was a motion to dismiss by U.S. Energy [Corp.],” says John Belkin, attorney for the Town of Crested Butte. “To have the opportunity to try the facts before the judge…we couldn’t have asked for more.”
In a ruling handed down Tuesday, May 5, administrative law judge Robert Spencer told Gunnison County, the Town of Crested Butte and High County Citizens’ Alliance that they would have the chance to argue for more financial guarantees to ensure that a wastewater treatment plant on Mt. Emmons would continue to operate.
The more than 30-year-old plant sits on the flanks of Mt. Emmons and treats wastewater and surface water that comes from the vicinity of the mine. The treated water is discharged into Coal Creek, which serves as the only source of water for the town of Crested Butte.
According to Belkin, “This is a trial of the facts,” and he is confident the proponents can show the need for U.S. Energy to put up money to make sure the treatment plant continues operating.
It was a victory for the three proponents of the guarantees, which had repeatedly petitioned the Division to place environmental and financial safeguards on the permit requirements for the facility.
According to U.S. Energy, which was issued a permit to operate the plant last July at an estimated annual cost of $1 million, the facility could stop operating or operate unattended for as many as 13 days without significant environmental impacts.
County attorney David Baumgarten says the real concern is that the plant could operate for as little as three days if there was a major human or mechanical failure.
A state assistant attorney general will be at the next phase of the hearing, scheduled for May 28, to defend the Division’s position that the situation with the plant on Mt. Emmons doesn’t present a unique situation.
The Division says it legally couldn’t require the unprecedented step of withholding a permit until the applicant can provide financial guarantees, like a bond or endowment, to ensure the plant would continue operating in all circumstances.
HCCA water director Steve Glazer says there are several reasons the Town’s situation is unique, namely the proximity of the plant to town and that a failure at the plant could mean heavy metals and toxins would flow almost directly into the town’s water supply.
“The state failed in its duty to protect water quality by not requiring some assurances that the plant would continue to operate,” says Glazer. “I think we’ve been vindicated to get past the issues of law.”
U.S. Energy, which was issued a permit to operate the plant last July, agrees with the Division’s position, but takes it a step further, saying the Division doesn’t have the authority to require a financial guarantee because it isn’t specifically stated as one of the regulatory options in the law.
In the ruling, Judge Spencer flatly rejected that and several other arguments U.S. Energy had made against further regulatory requirement attached to the permit.   
He also points to the very legislation that created the Division, which gives “the Division the final authority in the administration of water pollution prevention…” It also allows the Division to take whatever action is necessary to “prevent, abate and control pollution,” according to the ruling.
It is on that point that the proponents are challenging the Division’s refusal to impose a procedure for guaranteeing the future financial operation of the facility.
According to Glazer, it isn’t necessarily the proponents’ intent to set legal precedent that will force the Division to consider financing when issuing a permit for wastewater facilities in the future.
“Based on past experiences the state and the [Environmental Protection Agency] have been on the hook for cleaning up messes that have been left behind by mining operations. What we’re asking for is something a little different,” he says.
But getting the judge to approve a hearing doesn’t mean the proponents are just going to get what they want. Instead, according to the ruling, the burden of proof for the hearing will rest squarely on the proponents’ shoulders.
“We’re going to have to go back in time,” says Belkin. “We’re trying to show the judge what happens when the plant is not there, that the creek used to run orange in town. So this plant needs to be operational.”   
Neither an official at U.S. Energy nor the company’s attorney wanted to comment on the ruling.