THE MINE NEXT DOOR: Part 4

The late U.S. District Judge Jim Carrigan. (Carnegie Branch Library for Local History)

The Idarado Legacy Trail follows the course of the San Miguel River from Telluride to Pandora, offering views of the reclaimed tailings pile formerly known as the Toxic Twinkie.

Mark Worth and Art Goodtimes inspected the underground workings on the 1230 level of the Idarado Mine in 1990. Goodtimes was a citizen representative on a Local Negotiating Committee set up by Gov. Roy Romer to give local citizens and government officials in Telluride and Ouray more say in the final Idarado cleanup remedy.

In the years leading up to the RAP, environmental consultants for both Idarado/Newmont and the State of Colorado collected countless water samples in an effort to characterize the environmental conditions at the Idarado Mine.

Former Colorado Governor Roy Romer.

Unremediated tailings between Telluride and Pandora, circa 1990.

 

 

 

 

It’s a RAP
The Battle over Idarado’s Reclamation

by Samantha Tisdel Wright

Locals called it the Toxic Twinkie.

By the time the Idarado mine shut down in 1978, the enormous loaf-shaped mound of tailings at the edge of Telluride – otherwise known as the Number 6 tailings pile – had taken on a life of its own in the town’s collective consciousness.  

On gusty days, 20-foot-tall dust devils lifted off the tailings and swept through town, inspiring KOTO (Telluride’s local radio station) to broadcast “tailings alerts” warning town residents to take cover. No one really knew what was in that dust, or what it might do to them when they breathed it in.

Some folks joked (and perhaps secretly fantasized) that the Toxic Twinkie would roll out of town one day of its own accord, like a giant jellyroll filled with slime.

Instead, it was transformed into a grassy green meadow as part of the Idarado Mine’s cleanup effort in the 1990s. The innovative reclamation project, guided by a sort of “cookbook” of environmental remedies called the Remedial Action Plan, was a strange love child born out of an epic legal battle between the State of Colorado and Idarado/Newmont that spilled across a decade like something out of Game of Thrones.

Superfund Me

It started with the tailings.

In 1975, Telluride citizens complained to the Colorado Department of Health’s Air Pollution Control Division about the wind-borne menace that frequented their town. Their complaints launched a pair of studies by the Colorado Department of Health, and the United States Public Health Service, Centers for Disease Control, which determined the Idarado Mine had caused significant environmental problems in the area.

Soon after those studies were complete, the Town of Telluride drilled two test wells not far from the blunt yellow toe of the No. 6 tailings pile as part of an effort to augment the municipal water supply, and discovered an industrial pollutant called hexavalent chromium in the water. It was traced to a reagent used at the Pandora Mill. The Idarado landed squarely on the State of Colorado’s official “naughty list” of mines.

Meanwhile, the environmental pollution disaster known as Love Canal had literally exploded in Niagara Falls, N.Y. that same year, leaving chemical-soaked neighborhoods, birth defects, miscarriages and leukemia in its toxic wake. People across the nation were freaking out, and for good reason, about the impacts of heavy industry on the environment.

In 1980, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), more commonly known as Superfund, authorizing the Environmental Protection Agency to investigate and clean up messes like Love Canal. States were granted a brief window under the new law in the early 1980s in which to sue alleged polluters for natural resource damages.

Colorado was one of a number of western mining states that jumped at the opportunity to prosecute its own CERCLA cases. It sued Idarado/Newmont and five other Colorado mine sites for natural resource damages in 1983, just as a deadline for states to file under the federal Superfund law was approaching.

Most of the mining companies opted to settle with the State out of court. But the Idarado took exception to the State’s allegation that it was responsible for mining impacts in the region that stretched all the way back to the 1870s, when Idarado hadn’t even formed until 1939.

”We didn’t think we had damaged natural resources to the extent that the State alleged, and we also never felt comfortable with the fact that they would come back after us for remedial charges anyway,” explained retired Idarado site manager Rick River, who played a lead role in overseeing Idarado’s reclamation.

Instead of settling, Idarado/Newmont and the Colorado Attorney General’s office squared off and prepared for battle.

Competing Visions for Cleanup

The following summer, a frenzy of field work got underway to characterize the environmental conditions at the Idarado Mine. Both sides hired teams of consultants who fanned out across the high country between Ouray and Telluride, sampling everything they could get their hands on – surface water, mine water, soil, waste rock, and of course, tailings.

“We were pretty much doing parallel studies,” said Sherm Worthington, a longtime environmental consultant for Idarado/Newmont. “Initially there was a fair amount of friction between the State and Idarado. When we would go out and sample, they would be watching what we were doing, and we were watching them.”

The State soon published a Remedial Investigation Report that characterized the hazardous materials and the extent of contamination at the Idarado Mine, closely followed by a Feasibility Study that cited six remedial options it was considering. These ranged from doing nothing, to trucking thousands of tons of tailings from Telluride and Red Mountain Pass to a disposal area in Utah, and converting most of Ironton Park into a massive, passive water treatment plant.

In March 1987, the State released a Record of Decision that outlined its final proposed solution for cleaning up the Idarado Mine.

All of the Idarado tailings would be consolidated into two enormous piles – one at Telluride’s No. 5 and 6 tailings pile and one at the No. 4 tailings pile in Ironton Park. (A giant conveyor belt would be built to transfer tailings from the Treasury Tunnel area down to Ironton Park.) Each of these piles would be capped with a four-foot layer cake of bentonite clay, cobble and topsoil that would either be trucked in or harvested from “borrow” areas nearby.

Underground water from the upper mine workings on the Telluride side would be diverted via a trans-mountain diversion to the Red Mountain side to dilute Red Mountain Creek. Lime or limestone would be added to make the creek less acidic, causing the soluble metals in the water to take on a more solid, sludge-like form so they could be contained and treated.

This heavy, metals-laden sludge would be carried along in the creek until the terrain flattened out in Ironton Park. There, the State’s plan required excavating seven large settling ponds, which would consume most of the Ironton Park area. When water from the creek flowed into those lagoons, State experts said the water would slow down enough to make the sludge drop to the bottom of the lagoons, while cleaner water would flow on into the Uncompahgre River.

On the Telluride side, underground mine water outflow from the Mill Level Tunnel and Meldrum Tunnel would be captured at another settling pond, to be built in Royer Gulch. And if this didn’t prove to be effective, an industrial-scale water treatment plant would have to be built on the Telluride valley floor.

Idarado/Newmont released its own remediation proposal, outlining a simpler, cheaper and less intrusive solution that preserved, to the extent it could, the integrity of historic mining relics in the area. For several years, they had already been successfully experimenting with stabilizing their tailings piles in place – mulching them with hay and manure and lime and things so that grass could be grown right on top of them. They called this process direct revegetation, and proposed now to apply it to all of their tailings in Telluride and on Red Mountain.

To improve water quality in the San Miguel River and Red Mountain Creek, Idarado/Newmont proposed a variety of source control methods to prevent clean water from getting contaminated. In the high country, surface water would be diverted around waste rock piles and collapse features that led into the mine. In underground workings, mine water would be piped around metal-rich ore passes and old stopes.

The Community Weighs In

The local communities of Ouray and Telluride had plenty of opportunities to vet the proposed cleanup options at seemingly endless rounds of public meetings hosted by Idarado/Newmont and the State, both before and after the looming trial.

Ouray’s attitude was colored by a general anti-government sentiment. With no documented health hazards on the Ouray side, most everyone agreed that Idarado’s plan would be less disruptive to the town’s economy and would pose less environmental risk than what the State proposed. As one Ouray local put it, the State’s cleanup plan “seems like swatting a mosquito with a sledgehammer. You may kill the pest, but break your arm doing it.”

Ouray locals also worried that their town would bear the brunt of a burdensome and invasive cleanup over the State’s concern that the newly built Ridgway Reservoir downstream would become a catchment basin for the heavy metals pouring in from the mining district.

In Telluride, meanwhile, opinions radically diverged over what to do about the cleanup. Some recoiled from what they saw as the State’s “We’re from the Government and we’re here to help” approach and said that their kids had eaten tailings and were doing fine. Others felt the State’s plan did not go far enough to scour away every speck of Telluride’s dirty mining past from the environment.

Nobody in Telluride really liked what either the State, or Idarado, proposed to do. But as former KOTO news director Jon Kovash recalls, Telluride’s objections to the cleanup “were mostly focused on the state’s insistence on a four-foot earthen cap, which would have entailed all kinds of disruption.”

Here Comes the Judge

Armed with their competing plans, the State of Colorado and Idarado/Newmont prepared to go to trial. First came the discovery period. The State sent its lawyers to the Idarado offices on Red Mountain Pass, where they set up a sleek fleet of Xerox machines and settled in to review 480,000 pages of mine records going all the way back to 1945.

“Every paper had three sets of eyeballs on it,” River recalled. “The State had its attorneys in one room going through our records, and we had to look at everything to see if it was privileged information.”

Then came the depositions. River and his boss had an ongoing friendly dispute over which one of them did the most deposition time. “I did 28 hours,” River said. “It’s not easy, and it’s not fun. They try to ask you questions to trick you.” But River, a tall, lanky man whose fiery temper on the basketball court had been legendary when he was growing up in Ouray, held up just fine under the intense pressure.

Finally, in 1987, the case went to trial in Denver before Federal District Judge Jim Carrigan. At the time, it was the largest lawsuit ever brought by a state against a private company.

Dave Baker, Newmont’s retired Chief Sustainability Officer, sat through the whole trial which stretched across six months. “It was complicated,” he said. “Imprinted on top of the legal complexities were all of the science and engineering and technical pieces that went into the plan on both sides. And those elements were all argued and litigated. So yeah, It was pretty intense, and all-consuming.”

Baker was impressed with how much energy Judge Carrigan put into understanding it all, even taking a field trip to Telluride and Ouray and traveling all the way through the underground workings from one side to the other.

Ultimately, after weighing all of the evidence and testimony, Carrigan was not convinced that the Idarado’s plan would work. In a landmark ruling that marked the first court conclusion to a state-prosecuted CERCLA trial, Carrigan ruled in favor of the State of Colorado, and entered a mandatory injunction requiring the defendants to execute the State's cleanup plan.

Carrigan’s conditions for the massive cleanup included consolidating tailings piles in Telluride and Red Mountain, capping them with four feet of earthen material as the state had called for, and stabilizing them with a flood-control structure; monitoring lead levels in the blood of Telluride children for five years; relocating Pandora Trailer Park residents from contaminated land where cleanup would then take place; revegetating mined land areas; improving aquatic habitat and stocking fish in the San Miguel River; diverting water from contaminated areas; and treating already contaminated water.

The ultimate cost of the cleanup plan was pegged at $40 million or more, and the State planned to ask for up to $200 million more in environmental damages.

RAP Sheet

The State’s vindication was short-lived.

Idarado appealed to the 10th Circuit Court, and in December 1989, a three-judge panel overturned Judge Carrigan’s decision on the grounds that the district court lacked authority under CERCLA to force Idarado/Newmont to implement the State’s proposed cleanup remedy. Moreover, the panel ruled that the district court could not force Idarado to evict the residents of the Pandora Trailer Park – an essential component of the State’s cleanup plan.

The decision had a crippling effect on all of the states that had begun filing their own suits under CERCLA, shifting mine cleanups across the country into the cumbersome realm of the EPA.

The State of Colorado appealed to the Supreme Court to overturn the lower Court’s ruling, but the Supreme Court refused to hear the case. The State’s only remaining option was to do the reclamation work itself, and then sue Idarado to try to recover costs. But the State didn’t have the funding to do a project of this scale on its own.

“At this point, Idarado could have walked away from the whole process and simply implemented its own reclamation plan,” Baker recalled. “Instead, we entered a new round of negotiations with the State to try to come up with a plan both parties could agree to.”

Hence was born a Consent Decree between Idarado/Newmont and the State of Colorado, with an accompanying cleanup plan referred to as the Remedial Action Plan –  RAP for short – which methodically spelled out all of the cleanup activities that Idarado/Newmont agreed to undertake. It was a flexible, living, collaborative document that could be modified as time went on.

The two parties signed off on the RAP in 1992, and the cleanup got underway in earnest in 1993, exactly a decade after the State filed suit against Idarado/Newmont.

Five years later, River had placed a neat little check mark beside almost every item on the RAP sheet. The Colorado Department of Health (which has since morphed into the Colorado Department of Public Health and Environment) kept close watch over Idarado’s progress, granting modifications when necessary, and making sure Idarado was meeting its performance objectives.

A lot of what they did was brand new stuff in the world of mine reclamation. (Stay tuned for the next two weeks to find out just exactly what they did.)

“It was all completely manageable,” Baker said. But that’s not to say it was easy. “We were trying to work on and apply contemporary environmental standards on things that were done more than 100 years in the past. I think we did a great job of that, but it took a lot of creativity and hard work and money.”

As time went on, what had started as a relationship of dispute and conflict between Idarado and the State evolved into collaboration and trust as the two parties worked together toward a common goal of improving the environment.

Looking back, Baker is pleased with how it has all turned out. “Idarado was always special to me,” he said. “It’s an incredible area – one of the most beautiful areas of Colorado if not the West – with a rich and robust history. I really love it there and I am proud of the work that Newmont and Idarado did in developing and implementing that plan. It was some really good work.”

“There are still some things to be done, but we have had a lot of successes,” Idarado counsel Denise Kennedy concurred. “And we are not going anywhere; we are continuing to work on it.”

Win-Win-Win

Telluride poet and environmentalist Art Goodtimes knows a lot about the Idarado cleanup. He wrote an in-depth series of articles about the RAP for a local Telluride paper, and served as a San Miguel county commissioner during the formative years of the project’s development. He was also appointed to be a citizen representative on a Local Negotiating Committee set up by Gov. Roy Romer in the early ‘90s to give local citizens and government officials in Telluride and Ouray more say in the final Idarado cleanup remedy.

A self-described “Haight Ashbury hippie and Earth First guy”, Goodtimes admits he went into the negotiating process feeling pretty jaded, and wary of Newmont’s motives. But, he added, “I think it was really impressive that Newmont/Idarado stayed in the game and worked through it rather than taking the court case, winning and leaving this big mess. I think we arrived at a win-win-win situation for Newmont, Telluride and the environment. Everybody won on this one.”

Most people on the Ouray side feel good about the way things have turned out, too. They are happy that the high country mining relics on Red Mountain Pass have been left intact, and that the beautiful, wild wetlands in Ironton Park haven’t been dug up to make way for settling ponds.

“I have no objections to the cleanup – I think it’s wonderful. It seems they have done a remarkable job,” said Bill Fries (the country western singer also known as C.W. McCall), who was serving as Ouray mayor while cleanup negotiations were underway in the 1980s. Fries strongly opposed the State’s plan at that time, preferring the Idarado Mine’s less intrusive remediation proposal.

“I hate government stepping in, you know?” he said. “I am a friend of the miners and the mines. We moved here because of the mountains and the history, and mining is a big part of that history.”

The Toxic Twinkie Rides Again

Before the Idarado cleanup got underway, Telluridians worried that the tranquility and harmony of their valley would be compromised during the reclamation period. That didn’t really turn out to be the case – largely because the tailings remained in place, and did not receive the four-foot earthen cap the State had called for.

But as the State and Idarado nailed down the final details of the RAP back in the early ‘90s, Telluride locals were still deeply unhappy about their options.

An article Kovash wrote for the Aug. 14, 1989 issue of High Country News captured the sense of frustration that pervaded Telluride at that time. “The State is being as stupid as the mining company,” Kovash quoted San Miguel County Commissioner Jim Bedford as bluntly stating. “We’re caught between a stupid rock and a stupid hard place.”

Many Telluride residents still hoped to find a way to banish the 12 million tons of tailings from their back yard. Hauling them all the way to Utah proved impractical – that would have required a truckload of tailings every 20 minutes for 12 years through the only road in town. But what about stuffing them back inside the mine? Or transporting them out of town with a giant Archimedean screw? Or sluicing them out to the airport to use as fill for the runway?

Gov. Romer caught wind of the town’s hate-relationship with its tailings during a visit to Telluride at about this time.

Romer was known for his pragmatic approach to dealing with the environmental issues of the day. In addition to mine reclamation challenges across the state, he was also dealing with nuclear waste at Rocky Flats and with the Rocky Mountain Arsenal's buried reserves of toxic nerve gas.

“A mine tailings pile is a problem, but not as big a problem as atomic waste,” he said.

The solution, in Romer’s mind, lay not in solving, but mitigating the problem, as the RAP itself proposed to do. “You can’t stop the wind. You can’t truck all of these tailings away, or stuff them back inside the mine. That doesn’t make sense,” he remembers saying. “You need to take what you are faced with and tell people there are no ideal solutions.”

Eventually, Telluride made reluctant peace with its Twinkie, and the green wig of grass it soon sported, as the newly remediated waters of the San Miguel River beckoned in recompense to fly-fishers and kids on inner tubes on hot summer days.

Redheaded Stepchild

In Ouray, meanwhile, most locals didn’t give much thought to the strangely named, strangely-colored river running through their own town. The Uncompahgre River had always been that way, they pointed out – since the time of the Utes – and its Ute name could be loosely translated as “stinking water,” or “bad water,” or “water that runs red”.

But Idarado’s water remediation experts would spend the next two decades giving the Uncompahgre River – and its tributary, Red Mountain Creek – lots of thought, as they wrestled with the greatest challenge of the whole Remediation Action Plan: improving water quality in the acidic, mine-riddled Silverton Caldera.

Next Week: A Tale of Two Watersheds

RAP at a glance

The Idarado Reclamation Action Plan, a 174-page document, was an innovative five-year program (1993-7) developed for remediating the impacts of historic mining activities in the San Miguel River and Red Mountain Creek (Uncompahgre) drainages. The RAP included guidelines for completing certain remedial tasks within a given timeframe.

The RAP has two primary objectives:
‏•    Stabilize mine tailings through direct revegetation;
‏•    Improve water quality in Red Mountain Creek and the San Miguel River through a variety of source control measures.

Many of the remedial elements in the five-year program were completed ahead of schedule. The successful implementation of the Idarado RAP has become a model environmental remediation project, completed in close cooperation with State agencies and local citizen groups.