Injunction compels EMDI cleanup

MONTROSE — Elizabeth Mining and Development Inc. defendants were handed an injunction Wednesday that compels continued cleanup and investigation of hazardous wastes.

Judge Jeff Herron found ample cause for the injunction sought by the Colorado Department of Public Health and Environment, which argued EMDI failed to fully comply with a 2006 order.

Herron said however that other evidence the state attorney general's office attempted to introduce concerning tax lien records was not relevant to Wednesday's proceedings.

Department investigators testified the state had no means to compel compliance, and thus assure continued public safety, except through an injunction.

There was, they said, a sense of urgency because the property is for sale as a foreclosure, which could complicate cleanup efforts.

Assistant Attorney General Rob Eber said EMDI owner Steven Casebolt hadn't appealed the state's 2006 compliance order, which included a three-phase inspection of the property.

Casebolt, who represented himself, questioned why EMDI was being held to residential standards when it was an industrial site and also why the CDPHE was applying 2009's standards concerning hazardous waste levels to a 2006 order.

"Even though we have to pretend the compliance order is legitimate, I personally think it is unreasonable for them to use a February 2006 compliance order to enforce 2009 compliance levels," he said.

The state later countered, saying the industrial classification was a local zoning classification the CDPHE had no control over, and there was no guarantee the property would remain in industrial use. Its representatives said compliance levels routinely change in response to ongoing scientific research.

EMDI, on 63.00 Road, once stripped precious metals from catalytic converters. State inspections began in 2005 and continued into 2006.

Casebolt, his elderly father, Joseph (since deceased), and business partner Wayne Ratner, were indicted on criminal counts in 2007. Those proceedings are separate from CDPHE's civil case.

The state's solid and hazardous waste commission is also considering reinstating a civil penalty of $405,000.

Ed Smith, a CDPHE Environmental Protection Act specialist, testified Wednesday to finding high levels of lead in one sample taken from the EMDI site during the first phase of testing called for in the compliance order.

The 2006 order itself stemmed from EMDI's waste disposal practices, which the state alleged included dumping waste acid directly onto the ground.

Under the second phase of testing, a grid sampling was done and contamination was found within the site "where the concentration of lead exceeded residential cleanup standards," David Walker, another state EPA specialist, said.

Walker also said there were concerns with surface water runoff spreading contamination, although the dense clay under EMDI would protect the groundwater.

He said EMDI has not submitted a phase-three plan for remedial action on soil contamination.

This was a clear violation of the 2006 order, Eber argued.

Walker testified that Casebolt would still be responsible for the compliance order if his property sold, but would have to have permission from the new property owners to access the site. If the new owners refused, that could give Casebolt a defense for not complying.

"It would behoove everyone to get this done before the property changes hands," Walker said.

Eber then attempted to introduce a tax lien sale certificate of purchase. He said Casebolt created a new company, Amazon Mining and Development Group, then applied for a treasurer's deed on one parcel of EMDI's property as Advanced Technology International, LLC.

"This is yet another effort, we believe, to wrest this property away from the government's (ability) to have cleanup on this property," Eber alleged, calling it "the latest in a series of fraudulent transfers."

Herron sustained Casebolt's objection on grounds of relevance to the proceedings at hand. Herron said an injunction would still require Casebolt to clean up the property, regardless who wound up owning it.

Then, finding Casebolt failed to comply with a binding compliance order, Herron gave the state its injunction.

Casebolt agreed to comply within 60 days.