Settlement Reached in Tailings Contamination Near Ophir Turn
by Gus Jarvis
Apr 04, 2013 | 1733 views | 1 1 comments | 8 8 recommendations | email to a friend | print
FRESH SNOW blanketed the tailings pile in the upper Ilium Valley Wednesday morning. Voluntary remediation work completed by PacifiCorp has not worked to keep heavy metals out of the San Miguel River drainage. A new settlement will obligate the company to investigate and take corrective actions. (Photo by Brett Schreckengost)
FRESH SNOW blanketed the tailings pile in the upper Ilium Valley Wednesday morning. Voluntary remediation work completed by PacifiCorp has not worked to keep heavy metals out of the San Miguel River drainage. A new settlement will obligate the company to investigate and take corrective actions. (Photo by Brett Schreckengost)

SAN MIGUEL COUNTY – A settlement was reached late last month between Sheep Mountain Alliance and PacifiCorp that obligates the company to investigate and take further remediation actions on the Silver Bell Tailings located near the Ophir turn on U.S. Hwy. 145.

Since 1998, PacifiCorp has taken voluntary steps to cap, stabilize and clean the mine tailings deposited by the Silver Bell Mill in the 1950s. For the past two years, that completed remediation work on the tailings have been in a monitoring stage. So far, the remediation work has been unsuccessful in keeping the Environmental Protection Agency’s water quality standards for the San Miguel River at acceptable levels.

Roughly one year ago, when, according to Sheep Mountain Alliance Director Hilary Cooper, the organization was “combing” through EPA water data from the San Miguel River, downstream from the tailings, “alarming” records they believed to be Clean Water Act violations turned up.

SMA eventually brought a citizen Clean Water Act lawsuit against PacificCorp , alleging liability due to years of illegal discharges of heavy metals, acidic drainage and other pollutants from the impoundment. All of those mine contaminants, the lawsuit alleged, were flowing out of the Silver Bell Tailings impoundment and into the Howard Fork of the San Miguel River, despite the remediation work that had been completed on the site.

The lawsuit eventually led to a mediation process between SMA and PacifiCorp, resulting in a settlement and a consent decree announced March 21. In the settlement, both parties agreed to use a third-party expert to analyze and recommend a way forward that both parties could agree on. PacifiCorp has agreed to embark on four-step monitoring process of the tailings that will determine where the specific source of the contamination is located; once that is found, PacifiCorp will come to the table with a proposed correction.

“What we believe is that it will lead to a replacement of the tailings cap,” Cooper said. “But this way, with an in-depth analysis of the contamination sources, we think a new cap will be engineered in a way that will have a higher chance at success than what is there right now.”

PacifiCorp never actually deposited mine tailings, but did lease on which the mine tailings were deposited in 1941. At one time, Western Colorado Power, once a part of Utah Power, owned and leased the land, but  Utah Power has since sold all working assets off, including that parcel of land to PacifiCorp.

As part of that consent decree, PacifiCorp agreed to do monitoring work this summer on the tailings and must then come up with a new remediation recommendation by 2014.

“Essentially, they are trying to do the right thing but they didn’t have the right information in order to stop the contamination from happening the first time,” Cooper said. “We forced this project by bringing in a needed technical expert. It was a positive negotiation and I think it is a strong consent decree for both parties.”

In addition to the management plan action, PacifiCorp has also agreed to pay $150,000 to the San Miguel Watershed Coalition. Under federal law, polluters found accountable under the Clean Water Act are required to pay funds in lieu of civil penalties toward local watersheds.

The funds will be applied to the restoration of the Priest Lake reservoir.  The restoration project will be conducted through a public-private partnership comprised of SMWC, the United States Forest Service, Colorado Parks & Wildlife, and other conservation groups and will restore the healthy fish habitat, water storage capacity and scenic attributes of the Priest Lake recreation area.

Twitter: @Gus_Jarvis

Comments-icon Post a Comment
April 04, 2013
...In a June 26, 1994, Cleveland Plain Dealer article entitled Environmentalists Leery of Possible Loopholes, Chris Trepal, co-director of the Earth Day Coalition in Northeast Ohio, lambasted the enabling VAP legislation as "one of the poorest public policy measures I’ve ever seen." A clairvoyant Richard Sahli, executive director of the Ohio Environmental Council, echoed his sentiment in the May 26, 1994, Cincinnati Post, "We do predict there will be a lot of shoddy cleanups under this bill the state will never catch." Testifying before the House Energy & Natural Resources Committee on behalf of the Ohio Academy of Trial Lawyers, Cincinnati environmental lawyer David Altman asserted, "This bill is a definite bait-and-switch. What it is supposed to do and what it does is two different things."

A seminal, 152 page 2001 Gund Foundation funded study by the Green Environmental Council confirmed the critics’ predictions. A dearth of agency resources to provide meaningful regulatory oversight combined with the lack of a credible, established enforcement mechanism has rendered the feckless, industry aligned program toothless. "It’s a broken program - it doesn’t work," declared the council’s Bruce Cornett in an interview with the Cleveland Plain Dealer. Both the Sierra Club and Ohio Citizen Action opposed the 2000 $400 million Clean Ohio state bond issue out of concern the fungible proceeds could be utilized to prop up the lame Voluntary Action Program and create a trojan horse polluters slush fund. "This is the governor's attempt to whitewash his EPA," charged Jane Forrest Redfern, environmental projects director for Ohio Citizen Action in a November 1, 2000, Cleveland Plain Dealer article. Dedicated professionals, veteran Ohio EPA bureaucrats attempted to rectify the problem. According to the October 4, 2000, Cleveland Plain Dealer, "EPA staffers who shared some of the environmentalists’ concerns, at one point launched a quiet but unsuccessful campaign to disband the program."

For six years after the Voluntary Action Program’s 1996 implementation, the U.S. EPA refused to extend program participants federal immunity and threatened to decertify the Ohio EPA due to the VAP’s expansive, inhibiting secrecy provisions and tangible lack of transparency. In a brokered, bifurcated modification to the Ohio VAP that "frankly doesn't make sense at all," according to Ohio Public Interest Research Group director Amy Simpson (Akron Beacon Journal, February 24, 2001), an alternative "memorandum of agreement" VAP track with enhanced public access was crafted. Companies that elect the original, opaque, "classic" option, which conceals under an embargo the extent and nature of contamination, will not be afforded U.S. EPA liability insulation. "Why Ohio would want a two-headed monster is beyond me," quipped the Ohio Environmental Council’s Jack Shaner. In SCA’s case, the jaundiced, green and incompliant wants to hide what you can’t see.

Mark Chesler

Oberlin, Ohio