What Lies Beneath

The effort to reclaim a historic mining district has consumed years and millions of dollars. But will it hold water?

One of the things that wasn't working was the effort to take over an old mill on the Upper Animas and make it profitable. With the support of the Animas stakeholders' group, one of Fearn's companies sought approval to process raw mine dumps at the Howardsville mill. The idea was that Fearn's company would get paid to dispose of the waste, and profits from selling metals extracted from the dumps could be used to fund more waste-pile removal. But Fearn's company never processed any of the thousands of tons of rock trucked to the site. Its startup money was consumed, Fearn says, by the higher-than-anticipated costs of obtaining regulatory approval.

"We finally got the permitting issues all solved, but by that time we'd run out of money," he explains. In the end, the former owner of the mill foreclosed on the property and was stuck with the job of disposing of the dumps.

Gold King also struggled with its operation of the water-treatment plant. Under the permit, the water flowing out of the American Tunnel was supposed to be treated with chemicals to lower its acidity and then run through the settling ponds, which would absorb the heavy metals before the water was released to Cement Creek. WQCD required weekly reports monitoring the chemistry of the treated effluent. But the plant was out of service for weeks. On several occasions, the reports indicated that the discharge exceeded acceptable levels of zinc or other indicators; many weeks, the monitoring simply wasn't done. State records indicate that Gold King failed to provide monitoring reports for 30 weeks in a 52-week period.

Oh, sludge: Todd Hennis suffered a "near-fatal" in the 
Anthony Camera
Oh, sludge: Todd Hennis suffered a "near-fatal" in the Mogul.

Fearn has several explanations for the spotty performance. An avalanche hindered access to the plant and took the operation down for several weeks one winter, he says, and problems with the aging equipment at the plant, the changing chemistry of the flow being treated, and other factors contributed to the fluctuating test results. At one point the power was off because Gold King hadn't paid its utility bill, but Fearn brought in a backup generator to keep the plant running. "There were violations, technically, but there were reasons for them," he says.

Hennis considered the failure to comply with the discharge permit a violation of Gold King's lease, and last fall he went back to court with another eviction action. He also met with Mark Pifher, then-director of WQCD, to register his frustration with the division's lack of action on the violations piling up at the treatment plant. "He signed the cease-and-desist order right in front of me, which surprised the hell out of me," Hennis says.

Gold King was ordered to stop violating the state's Water Quality Control Act and to bring in an outside expert to evaluate the plant operation. In November, a judge granted Hennis's eviction action; without access to the settling ponds, the plant was shut down, and the untreated water began to flow directly into Cement Creek, prompting another cease-and-desist order.

Fearn says his company doesn't have the funds to comply with the state's orders at present. "We still think there's potential in the area, and we're working on trying to refinance," he says.

He insists the continuing discharge is "not an issue for water quality in the basin." The bulkheads Sunnyside installed reduced the flow in the American Tunnel from 2,000 gallons per minute to less than a hundred gallons per minute; that's a far cry from the situation that existed at the Sunnyside twenty years ago, when the mine emptied 100 pounds of zinc a day into the watershed. The remaining seepage consists of groundwater, Fearn says, with a chemistry similar to that of Cement Creek itself, which is already high in zinc and low in pH -- as acidic as a can of Pepsi, and devoid of aquatic life.

"It's a violation, no question about that," he says. "Is it doing any real damage? No."

Although Gold King could be subject to fines as high as $10,000 per day for the violations, WQCD has imposed no fines at all since the first cease-and-desist order went into effect nearly a year ago. The state hasn't even tried to collect the $11,000 in civil penalties imposed for Gold King's failure to keep the mine's reclamation bond current. Officials say that they're serious about enforcing the law, but that they had hoped to find some "behind-the-scenes" solution that would head off further court battles.

"I don't believe the time in this situation has been that extensive," says Scott Klarich, WQCD enforcement-team leader. "Certainly, if you get in the civil arena, those processes are time-consuming. We would have responded differently if the environmental impacts were more significant."

According to Johnson, the federal Clean Water Act and the Colorado laws modeled upon it aren't really designed to address problems with mine flows. "The Act was passed in the 1970s, when the issue was industrial plants," she notes. "People could turn off the discharge. It didn't envision mining, where the discharge goes on and on, even after the industrial process is over. We're trying to use tools that were developed to fit a different situation."

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