Clean water advocates make final arguments in Red Lady hearing

Judge’s ruling will end two-year process
 
Three local entities working to keep the water in Coal Creek running clean made their final arguments in a hearing on Friday, October 9 before an administrative law judge. The groups are hoping that the judge will require a financial guarantee that a wastewater treatment plant on Mt. Emmons will continue to operate into the future.

The hearing was the final step for Gunnison County, the town of Crested Butte and High Country Citizens’ Alliance (HCCA), which teamed up more than two and a half years ago to take on the state’s Water Quality Control Division and U.S. Energy, which holds a permit to operate the plant.
If Judge Robert Spencer rules in the proponents’ favor, he could set the amount for a performance bond that would be held as security or ask the division to make a standard for setting such a bond.
He could also tell the county, town and HCCA to go back and look for another way to get the guarantee they want.
U.S. Energy got a permit from the Water Quality Control Division last July to operate the plant for five years at a cost of about $1 million annually. The company then signed a two-year contract with Frank Environmental Services—which operated the plant for previous mine owner Phelps-Dodge—to run the plant.
The large gap between the dates when the two contracts expire, as well as other uncertainties, made water-users downstream of the plant nervous, so they coordinated to ask for more assurance that they wouldn’t be left cleaning up the mess if the plant stopped running.
The 30-year-old industrial wastewater treatment plant treats ground and surface water that comes from the Lucky Jack Mine on Mt. Emmons. The treated water is discharged into Coal Creek, just downstream of Crested Butte’s municipal water intake.
In the first part of Friday’s hearing, HCCA water director Steve Glazer took the stand as a factual witness. He told the judge that although the plant’s discharge site is downstream of the town’s municipal water intake, it is actually up-gradient.
The topography of Coal Creek alone, he explained, could allow contaminants to find their way into the town’s water if there were a failure at the plant.  
When the proponents first asked for the added assurance, the Water Quality Control Division claimed it didn’t have the legal authority to require U.S. Energy to put up a financial guarantee that would ensure the plant’s continued operation if they, or the company they hired, were no longer able to operate it.
U.S. Energy said during the hearing that the plant has an impeccable performance record and the best technology available, allowing it to run unattended in some conditions for nearly two weeks. The plant, however, cannot be operated remotely, they said.
Due to the proximity of the plant’s discharge site to the town’s intake, the potential that the plant could be left unattended and the consequences that would be left to the residents of the valley if the worst were to happen, Judge Spencer ruled that the Water Quality Control Division does have the authority to require the bond.
Now the judge has to decide if the proponent’s circumstances warrant a security bond, which he could set himself, and if the division should create a standard for requiring a security bond in similar future situations. As of now, the division makes that determination on a case-by-case basis.
Glazer said this case is the first time a municipality has asked the division for financial protection against the failure of an industrial discharge site. He says this is precedent-setting case and could give other municipalities that are downstream of an industrial discharge the power to ask for bonds.
“We’re plowing into new territory and we’re looking to set a new precedent,” Glazer says. “That’s sometimes difficult, but we’re feeling pretty good about it right now.”