COVER STORY: Mining cleanups under Trump: A speedup or just ‘sound and fury’?

Author: David O. Williams - May 22, 2018 - Updated: May 24, 2018

In this Aug. 14, 2015, photo, water flows through a series of sediment retention ponds built to reduce heavy metal and chemical contaminants from the Gold King Mine wastewater accident, in the spillway downstream from the mine, outside Silverton. (AP Photo/Brennan Linsley, File)

MINTURN – In the 1980s, as Vail was gaining international notoriety as a global ski destination and Beaver Creek was struggling through its formative years, there was a dirty little secret in the river flowing between the two resorts – a fish-killing mix of arsenic, zinc, cadmium, lead and copper causing the Eagle River to run a rusty orange on its way to the Colorado River.

The Eagle River was largely devoid of aquatic life after a century of gold, silver and zinc mining between the towns of Minturn and Red Cliff near Vail. The U.S. Environmental Protection Agency put the Eagle Mine near Vail on the Superfund cleanup list in 1986. That process, begun when Ronald Reagan was president, is still grinding on.

Nearly three decades later, the spectacular 2015 Gold King Mine accident — triggered by an EPA contractor — released millions of gallons of the same heavy metals that poisoned the Eagle into the Animas River near Silverton, causing that river to infamously turn the same hue as the Eagle 29 years earlier.

SIlverton-area residents at first resisted a Superfund designation, fearing it could dampen the region’s vital tourism industry. But the EPA made the designation in September 2016. And embattled EPA Administrator Scott Pruitt last year declared a cleanup of the vast complex of old mines near Silverton a top priority.

It’s a tale of two mining messes, really, with a common thread of ski and summer tourism destinations struggling with the toxic legacies of the past century.

President Donald Trump campaigned on a platform of easing up on regulations that slow down business, particularly on environmental matters, and tapped Pruitt — a longtime nemesis of the EPA — to lead the charge.

And in fact, Colorado’s hard-rock mining interests are seeing a thaw in their relations with the federal government.

But as for dealing with the after-effects of past mining, the question now is whether the new-look, regulation-adverse EPA under Pruitt can speed up the tortuously long process that for years has held up potential development on the Superfund site near Vail.

Real estate and recreation are the economic kings of the mountains these days, but mining remains a $7 billion business for the state, with 18,000 people employed mining coal, gold, gypsum, limestone, molybdenum and sodium bicarbonate, according to the Colorado Mining Association (CMA).

From the extension of Freeport-McMoRan Inc.’s Henderson Mine in Clear Creek County to Newmont Mining Corp.’s expansion of its Cripple Creek & Victor Gold Mine, hard-rock mining remains vital, CMA officials say.

“We talk about Silverton, Leadville, Vail, Eagle, and mining was there first,” CMA President Stan Dempsey, Jr. told Colorado Politics. “It was the first wealth creator in all of those communities … and it’s only when you have extraordinary circumstances that that working relationship is sometimes tested. But the two industries have coincided for a long time together.”

A long and winding road

Building homes on piles of old and sometimes toxic mining waste, however, has never been as quick as digging a mine in the first place, and the EPA has never been accused of being too fast to declare an old mining site ready for redevelopment.

Take, for instance, the Eagle Mine just outside of Minturn, and the planned Battle Mountain Resort development nearby, first proposed in 2005 and approved by area voters in 2008.

As initially proposed, parts of the development were to be built on mining-waste cleanup sites.

“Yeah, it took us nearly a decade to get through this process, and like any government process there is … inefficiency and stuff that just shouldn’t have to happen that happens,” Tim McGuire, Battle Mountain Resort’s vice president of development, told Colorado Politics. “There are ways to get this done much more smoothly and in a timely manner.

“I don’t think we throw out everything like some in the current federal administration want to do, but I think there are definitely ways to significantly improve the process,” McGuire added. “At the heart of it, these rules are in there to protect people and the environment, but no doubt there are ways to make it so that it doesn’t take 10 years. You could do it in a couple of years.”

McGuire is still months away from even beginning soil remediation on the property near Minturn, let alone filing a plan for an estimated 700 homes south of town. But for him, those steps feel like substantial progress on the long and winding road Battle Mountain has taken since 5,300 acres of old mining claims were cobbled together by two Denver lawyers and sold to Florida developer Bobby Ginn for $32.75 million in 2005.

Ginn, known for residential golf developments in Florida – including one around a former EPA Supefund-site lake – gained overwhelming approval from Minturn voters in 2008 to build a private ski and golf community with 1,700 homes, two 18-hole golf courses, two gondolas and 10 chairlifts on acreage pieced together from old mining claims from the glory days of the late 1800s and early 1900s. At one point the property is just a mile from Vail’s famed Back Bowls.

Denver lawyers Michael Page and Jim Aronstein, with partial funding from what is now Vail Resorts, accumulated the largest tract of private land in the upper Vail Valley, and Vail only walked away from the deal because of blowback after the eco-terrorism arson fires of 1998. Aronstein used his windfall from Ginn to start the private Cimarron ski area in the San Juans.

Ginn, meanwhile, went bankrupt in the global recession of 2009, derailing his grand plans for the mining claims near Vail. Some of the homes Ginn was proposing then would have been built on old tailings piles largely covered over by previous Eagle Mine owner Viacom in the 1990s during the early days of that area’s Superfund listing.

‘It still feels like progress is slow’

Meanwhile, the Bonita Peak Mining District Superfund site above Silverton is just getting started on its EPA journey after the tiny town of 630 hardy souls tucked into the southwest Colorado mountains found themselves in the national spotlight in 2015.

Most in Silverton and surrounding San Juan County will tell you they never want to become the next Vail, nor will the preponderance of federal land surrounding the town allow it, but they have skiing and bustling summer tourism, and as recently as 2011 were concerned about the stigma of Superfund listing for the dozens of leaky mines above town.

Now that’s the least of their concerns. The area’s been listed by the EPA, named a top-21 priority by Pruitt, and the process of cleaning up 35 historically discharging mines in three separate creek drainages feeding into the Animas has begun in earnest.

San Juan County Administrator William Tookey told Colorado Politics that not much has changed from when the Superfund process kicked off in 2016 under former President Barack Obama — a champion of aggressive environmental policies — and is now being administered by the Trump administration.

“They’re still so into investigation and putting together their plan, but things are operating just like they were before the new administration. The only change is, at least on paper, is that we’ve been identified as one of the top 21 sites. We have no idea what that means, other than we’re on the top of the list,” Tookey said.

He added that the listing hasn’t impacted development or tourism.

“It hasn’t, in large part because there just hasn’t been a lot [of development] occurring, but our tourism has been good — we’re not seeing any impact there,” Tookey said. “This summer we’re going to be tested a little bit just because they’ve got a lot of (mining) sludge they’ve got to move from one location to another. We’re going to have a bunch of heavy truck traffic on county roads and we’re trying to get that resolved so it isn’t a safety issue and a dust issue.”

Tookey added that the county has been reimbursed for “virtually all of our costs that we incurred during the Gold King incident itself.” His concern now is that the funds keep flowing.

State officials like Attorney General Cynthia Coffman, who was highly critical of the EPA under the Obama administration, would like to see more urgency under fellow Republicans Trump and Pruitt.

“I was there when Scott Pruitt visited last year,” Coffman told Colorado Politics. “It was right around the second anniversary [of the Gold King release], and Pruitt talked about how things were going to be handled differently in this administration. It still feels like progress is slow to me. Obviously, I’d like to see things moving along.”

Christina Progress, EPA project manager for the Bonita Peak Superfund site, told Colorado Politics that a March order compelling Sunnyside Gold Corp. to help pay for the investigation of underground water flows in the area will increase the agency’s knowledge and actually speed up cleanup. She added the new administration definitely has an increased focus on Superfund sites.

“From a big-picture perspective, we’re happy that Superfund has been a priority for this administration and hopefully will continue to be,” Progress said. “We’re thrilled about that, and the amount of funding that comes with that is appropriate.”

‘Shoot first, aim later’

Near Vail, EPA Eagle Mine Project Manager Jamie Miller started working on the site near Minturn in 2015 under the Obama administration. She said things have picked up in recent years.

“I think that we have definitely kind of accelerated the process in the last year, especially with getting the Record of Decision for Operable Unit 3 [a water treatment facility] signed,” Miller said. “That was a heavy lift and a large amount of work, and so getting that done I think really was kind of the kickoff for us to be able to really implement the remedy.”

That remedy means using clean soil to cover over any mining remnants and tailings piles on Battle Mountain’s 500 acres of land a mile or so south of Minturn. But much more extensive remediation will be required at the company’s mining ghost town of Gilman high above the Eagle River Valley on the flanks of Battle Mountain – including removing abandoned and contaminated company homes and millworks.

The 2008 development plans there have been scrapped, along with a hotel, private ski area and the two golf courses on other parcels.

“(Redevelopment of) Gilman is probably off the table for this current developer because that was phase 3 that they were going to pay for with the first two phases that are now totally different,” Minturn Mayor Matt Scherr told Colorado Politics. “I would love to see Gilman developed because that remediates the (Superfund) issue and it’s the most gorgeous piece of land in this valley. If you ever go look at the view, it’s just jaw-dropping.”

In January, the EPA touted Eagle Mine as one of 31 sites “with the greatest expected redevelopment and commercial potential.” But Scherr says that water issues – specifically the town’s inadequate treatment facilities — remain the biggest hurdle for the Battle Mountain project going forward.

“I’m inclined to not spend a whole lot of time broadly speaking on things that come from this administration because it’s lot of sound and fury,” Scherr said of the EPA’s January press release. “We already knew it was developable. Anything is developable if you spend the money. This administration has proven itself to be kind of shoot first, aim later, figure it out.”

Seeking a Good Samaritan law

Colorado’s mining industry, however, has a different take on the current administration.

“The president and his secretaries have done exactly what they said they were going to do (in rolling back regulations),” said Dempsey, the Colorado Mining Association president. “The significant Trump action that happened in early January was the decision not to go forward with EPA’s rule on CERCLA 108(b). That was EPA basically imposing a secondary requirement for mines to demonstrate their ability to provide financial assurance of their operations.”

CERCLA 108(b) was an EPA rule proposed in the waning days of the Obama administration  aimed at requiring more financial assurances from mining companies in order to fund long-term cleanup. A similar Colorado proposal – HB 1301 — passed the Democrat-controlled state House of Representatives this session but died in the Republican-controlled Senate.

“We are rife with potential catastrophes that are like the Gold King,” Conservation Colorado Advocacy Director Theresa Conley said of the Democrat-sponsored bill. “We have a lot of abandoned mines and a lot of un-reclaimed mines This was just saying, going forward, instead of, ‘Hey, we’re good for it,’ you actually have to put money behind your bond.”

For the most part, mining companies already adhere to those rules in Colorado, Conley said. But she added that, in case of the election of a governor in November “who doesn’t want to protect our rivers, we (want to put) this practice into statute.

“Had this common-sense bill passed, it would not have actually impacted any mining operations here, and yet industry strongly opposed it. I think they’re emboldened by the Trump industry-first, energy-dominant agenda,” Conley added.

But CMA’s Dempsey contends financial assurances are already in place and that today’s mining industry operates under much more stringent environmental rules than the companies that created the Gold King and Eagle Mine messes a century ago.

In the wake of Gold King, there was a push to reform the 1872 Mining Act to charge royalties for hard-rock mining on federal lands and create a cleanup fund.

“Imposing taxes is the wrong approach,” Dempsey said. “The right approach, which I think both senators in Colorado support, is enactment of a Good Samaritan law, which says if you’re going to go in and work on an historic site, that you’re not going to be held responsible for previous operator’s (cleanup liabilities).”

Good Samaritan legislation, talked about for years, would allow governments, nonprofits and modern mining companies to work on legacy mining messes without the federal liability under EPA rules. Environmentalists support the approach to some degree but argue a steady funding source from the modern mining industry would still be necessary.

Congress is still working on a Good Samaritan law, according to the office of Republican U.S. Rep. Scott Tipton, whose district includes Silverton and part of the Eagle River where it dumps into the Colorado in western Eagle County.

“When EPA Administrator Pruitt traveled to Colorado to mark the second anniversary of the Gold King Mine spill, he promised to make those who were impacted whole. Congressman Tipton is holding him to that promise,” said Tipton spokeswoman Kelsey Mix. “And the congressman and leadership on the Natural Resources Committee are renewing their focus on Good Samaritan legislation.”

David O. Williams

David O. Williams

David O. Williams is a freelance writer based in Eagle-Vail, Colo. His work has appeared in more than 50 online and print publications in Colorado and around the nation.