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The Colorado Department of Public Health and Environment, which is charged with enforcing federal clean-water laws in the state, derives most of its data from voluntary reporting by all industries. In fact, the department didn't get around to inspecting Evergreen's Bon Carbo well sites until it was notified that a lawsuit was imminent.
"We had not been to the site since we originally permitted it in 1995," says David Akers, section manager for the health department's water-quality protection division. "We weren't aware of the full scope of what was going on down there. Hearing from the citizens' group brought this to light."
Late this spring, a department inspector found that several of Evergreen's wells lacked permits; other wells were discharging water into unlined ponds without permits.
Just how safe that water is has yet to be determined. Data provided by Evergreen to the health department indicates water from several of the company's wells failed whole effluent toxicity (WET) tests. These tests, which are commonly used to gauge water quality, involve exposing water samples to micro-organisms. If the water kills the organisms, it fails the test. A detailed analysis of Evergreen's well water is now being conducted by the health department.
The data from Evergreen also indicates that while many of the wells are relatively clean, some generate water with concentrations of chemicals such as benzene that exceed federal standards for drinking water. Other chemicals that have been found include toluene, xylenes, napthalene and nearly a dozen other substances. Since benzene has been linked to leukemia, residents worry that Evergreen hasn't been coming clean with them regarding the purity of its water.
A public meeting at Trinidad State Junior College in June quickly turned into a free-for-all as speakers from each side defended their positions. Evergreen CEO Mark Sexton lamented that "for some reason, communications have broken down" and assured the audience that his company cared about the environment in the county. To dispel "fears and rumors" about the water being generated by two company wells drilled close to one resident's water well, Sexton held up two jugs of murky water. "My directors were here last week, drank some of the water, and they didn't die," he said. The CEO then took a swig from each jug, earning a round of applause.
But such theatrics didn't satisfy SoCURE. In July the group filed a suit in U.S. District Court in Denver, alleging that Evergreen had violated the federal Clean Water Act by operating dozens of wells without discharge permits from the state and that several of those wells (including the one containing the water Sexton had taken a gulp of) produced wastewater contaminated with potentially dangerous chemicals like benzene. The suit also charged that some of the wastewater flowed into creeks that eventually reached Trinidad Reservoir and the Purgatoire River.
Evergreen responded quickly. Within days the company and three area landowners, including Paul Taylor, filed a slander-and-trespass suit in Las Animas District Court against Groubert and several of his neighbors.
And the company took other action. Just after SoCURE filed suit, Kircher says, Evergreen suddenly announced it wanted to build a well a few hundred feet from his home.
Evergreen officials say their attorneys have advised them not to talk publicly about either lawsuit, so they declined to comment for this story. In court filings, however, the company aggressively challenges SoCURE's claims. Evergreen contends there is no evidence that the groundwater generated by its project is harmful to residents or the environment; the company also claims it is not covered by the Clean Water Act because none of the water it produces ever reaches a major river.
The files include a letter that Evergreen wrote to the state health department in July, responding to the department's inspection report that cited a lack of permits for several wells. That charge was irrelevant, the company said, as were other SoCURE complaints. "Evergreen does not believe groundwater brought to the surface, which in most cases meets federal primary drinking water quality standards, is a 'pollutant' under the Clean Water Act," the Evergreen letter reads. "Evergreen denies any 'pollutants' are being discharged into state or U.S. waters."
But Bon Carbo residents scoff at the notion that none of the Evergreen-pumped water ever reaches Trinidad Reservoir. While the creek beds that run through the valley are dry much of the year, they say snowstorms and thundershowers regularly create flash floods, and Evergreen's excess water overflows from the ponds into the creeks.
"I've seen water four feet deep running through the arroyos," says Kircher.
Since SoCURE filed suit, the Environmental Protection Agency has also journeyed to Bon Carbo to inspect Evergreen's wells. Last month the EPA found that the company was in violation of clean-water guidelines: During its inspection of the area, the EPA identified eleven discharge sites operating without permits. The EPA inspector noted, too, that there were dead trees around Evergreen's ponds. Whether they were killed by contaminants or "drowned" by over-watering has not been determined; either way, the EPA says, Evergreen's ponds fall under the Clean Water Act.
The fact that neither state nor federal health agencies visited the site until SoCURE threatened court action annoys the group's members. "We were the ones that had to scream bloody murder to get the EPA down here," says Kircher.