When examining the stacks of records concerning Valmont Butte and its long history of contamination, you never know what specter is going to come floating from the pages. This week we take a look at the impact that President Ronald Reagan and his controversial environmental policies had on the butte.
While it may sound like a stretch to say that Reagan, the father of modern conservatism, with its small-government, anti-environment, pro-business undertones, had a significant influence on our local landmark, it’s not. The evidence leads all the way down to the infamous appointment book of Rita Lavelle, the Reagan appointee in charge of Superfund disbursements in 1982 and 1983, when the Environmental Protection Agency (EPA) suffered the worst scandal in its history. When all the evidence is examined, it appears quite likely that Reagan, Lavelle and Anne Gorsuch Burford — the president’s first appointed administrator of the EPA — may all qualify as ghosts who have haunted Valmont Butte.
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When it comes to the public record concerning the 103-acre property now owned by the City of Boulder on Valmont Butte, all roads lead to Rome, or more specifically, all roads lead to 1982. Even the remediation that has taken place at the butte in recent years seems to flow from assumptions made and actions taken, right or wrong, around this critical period. To put this slice of time into context, we must go back a ways.
The City’s tract of land at Valmont Butte was owned by Allied Chemical from 1941 to 1974. The chemical giant operated a fluorspar mill on the site during this period. While the site was also used as a gold and silver mill as well as a fluorspar mill by other parties for approximately six years prior to Allied’s acquisition of the property, and also as a gold mill for a few years after it was sold, it was Allied’s actions that accounted for the vast majority of the tailings contamination at the site.
It is estimated that more than 430,000 net tons of radioactive tailings containing significant levels of heavy metals, primarily lead and arsenic, are buried at the site in the primary and secondary tailings ponds (see map on page 14). As the map also indicates, radio active hot spots and lead-contaminated soils are found on many areas outside the ponds as well. In addition, between 150 and 200 truckloads of radium-contaminated soil were buried in two holes at the site in 1971. This radium-contaminated soil came from a construction site at Third and Pearl streets in Boulder, where the Housing Authority of the City of Boulder (HACB) was building a low-income housing project when the contamination was discovered and transported to the butte.
As important as what was contaminating the site in the years leading up to 1982 was the evidence that had been gathered by state and county health officials that indicated that nearby properties and water supplies were also being contaminated by Allied’s milling operation.
By 1982, authorities knew that Allied was actually pumping liquids from its primary tailings pond over a ridge and down into another tailings pond built on the Public Service property to the south, contaminating that parcel of land as well. From there the chemical giant actually pumped the tailings-pond liquid directly into the Public Service lakes. The three lakes comprising the Public Service (now Xcel) coal-fired plant’s water storage and cooling operations are part of the St. Vrain watershed and a migratory bird sanctuary, and they do discharge some water into South Boulder Creek and various ditches that ultimately link to drinking water supplies to the south and east.
In addition, another non-permitted liquid discharge stream from the Allied Mill had been found flowing to the northwest from the mill buildings. This discharge was tracked by health officials who adding dye to the liquid, then followed it under the road and into the KOA Campground pond west of Valmont Butte. The dye-laced liquid finally disappeared into South Boulder Creek and points downstream.
The health departments had also documented a long history of windblown contamination from the site, reported primarily by people living north of Valmont Road who were rightly afraid that inhaling the radioactive dust containing lead and arsenic from the tailings piles was harmful.
But it was another apparent discovery of concern that would finally push state and county health officials to take action in 1982. According to county, state, and EPA records, local and state health officials had become increasingly concerned that several water wells drilled into the shallow groundwater north of Valmont Road and used for drinking water and other purposes had become contaminated by leaching material from the tailings ponds. These same officials, according to an EPA memo, were also concerned that leaching contamination had made its way into the local aquifer that was supplying municipal wells within three miles of the property. It was a significant threat. If true, emergency action was surely needed. Enter EPA.
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The EPA was created in 1970 by President Richard Nixon. It was at first touted as a money-saving move towards efficiency as it combined several previously separate sectors of government oversight. During its first few years, the agency levied only a few, relatively small fines. But in October 1976, during the last days of Gerald Ford’s administration, the EPA dropped a bomb. Allied Chemical was hit with a $13 million fine for dumping Kepone-laden process water and other chemical discharges into the James River. The company was also accused of withholding vital information about the contamination from the EPA. This Allied fine was larger than all the other fines ever issued by the EPA added together.
Under Jimmy Carter, the EPA continued to make itself an expensive problem for the nation’s largest polluters, especially the large chemical manufacturers.
And this was the backdrop when Ronald Reagan took the oath of office for the first time in 1981.
From the beginning, Reagan made it clear that the EPA was not going to continue to impede business as it had in the past.
Reagan’s solution? He appointed an ultra-conservative lawyer and Republican former state legislator from Colorado, Anne Gorsuch Burford (Anne Gorsuch at the time), to be his
EPA administrator. He also appointed an old ally, California political operative Rita Lavelle, as assistant EPA administrator for solid waste and emergency response. It was the perfect position for a person with Lavelle’s political skills, as it came with control over disbursements from the newly created $1.6 billion “Superfund” program.
So the stage was set. In 1982 it was Burford and Lavelle’s job, along with a couple dozen other hand-selected Reagan appointees to EPA, to decide who got Superfund dollars and who got fined. It was truly “morning in America” for the giant chemical companies, which could not have been more pleased. Allied Chemical even started running an ad campaign using the likeness of Reagan.
Under Burford’s leadership, action at the EPA, or rather inaction, came quickly. The environmental agency’s enforcement actions dropped by 60 percent her first year as administrator. And of the $700 million that the EPA was owed in fines when she took office, she ended up collecting only $40 million. It was said, and not in jest, that it was her desire to put the agency she was appointed to lead out of business.
As for Superfund dollars being doled out by Lavelle in 1981 and 1982, an odd pattern seemed to be emerging. More than a few Democrats noticed that Republicans in districts with close re-election races were getting the Superfund dollars and the associated press coverage. Observers also noticed that the giant chemical companies, once the favorite target of EPA, didn’t seem to be on the agency’s radar hardly at all. Democrats knew that something wasn’t right, but getting to the bottom of it would prove a difficult task. It would also prove to be a difficult and frustrating time for the state of Colorado and its efforts to clean up Valmont Butte.
According to a memo written by EPA National Superfund Priority List Coordinator David Wilson, “In 1982, CDPHE (Colorado Department of Public Health and Environment) requested EPA look into submitting the Hendricks site [another name for Allied Chemical’s mill site] to the NPL [National Priority List].
This was an important step for the cash-strapped CDPHE. The sites on the EPA’s NPL are those deemed by the agency to be the most important sites for clean-up based on several criteria. Once the EPA has placed a site on the NPL, it can then either provide Superfund dollars to remediate the site if no party responsible for the contamination can be identified, or if guilty parties are identified, the agency can take enforcement action to ensure those parties clean up the site properly and pay for the expense.
To determine which sites qualify for NPL status, EPA calculates a Hazardous Ranking System Score (HRS). To be placed onto the NPL, a site has to score 28.5 or higher.
With what we now know was transpiring at EPA in 1982, it appears that this was a pretty hard number to hit if your potential Superfund site was sitting in the shadow of Boulder, one of the most liberal towns in America. It also didn’t help if your potential NPL site was in a region represented by a Democratic congressman named Tim Wirth, who happened to be an actual environmentalist, and who was also an outspoken critic of Reagan and former fellow Coloradan Burford. He also happened to be on the very House committee calling for a full investigation into Burford and Lavelle’s increasingly questionable actions at the EPA. It was truly bad timing for Valmont Butte and the state.
After the EPA’s assessment and inspection of Allied’s Valmont Butte site in 1982, the agency controlled by Burford, Lavelle and their like-minded Reagan appointees scored the contaminated site at 27.8 points on the HRS and labeled it for “no further action.” There would be no Superfund dollars to help the state clean up the butte and thereby disrupt what it believed were dangerous pathways for contamination to reach the public through surface and groundwater as well as in the air. There would be no federal dollars because the butte had come up short by seventenths of a single point from making it onto the EPA’s Superfund NPL. The state objected, of course, but their arguments fell on deaf ears at an agency whose top priority had become to spend no taxpayer money, levy no fines on polluting businesses and find no contamination unless it served a greater political purpose for the Republican Party. It was truly a scandalous time at EPA, but it was a scandal that would be exposed.
Having seen enough, Congress launched an investigation of the EPA and demanded documents it believed would show, among other charges, that the agency had inappropriately used the $1.6 billion Superfund. Reagan tried to thwart the investigation. Apparently not having learned the lesson of Richard Nixon, Reagan claimed that the EPA did not have to turn over the subpoenaed documents, on the basis of executive privilege. With Reagan behind her, Burford refused to cooperate and became the first agency director in U.S. history to be found in contempt of Congress.
As for Rita Lavelle, she, too, was uncooperative to Congress, but a whistleblower came forward and her EPA dealings began to come to light. Seeing the writing on the wall, Burford eventually fired Lavelle in the middle of the investigation now dubbed “sewergate” by the press. It is even speculated that it was Burford who directed the FBI to examine Lavelle’s appointment book. It was this appointment book that would finally bring clarity to the nation as to what the congressional investigation was really about.
Journalist Richard J. Maloy, Washington Bureau correspondent for the Press Courier, summed it up this way in his newspaper account dated Feb. 26, 1983. “Sometimes a single document can illuminate a complex issue with stunning clarity. Such a document has just surfaced here, and it is finally giving the public an inside look at what the fight is all about between Congress and the Environmental Protection Agency.” Maloy’s “document” was Lavelle’s appointment book.
Maloy went on to write with regard to the appointment book, “What is also true — and damning — is the revelation of who Ms. Levelle met with on a regular basis to discuss the hazardous waste clean-up program. The appointment book shows she had dozens and dozens of meetings last year with officials and lobbyists for the very chemical companies and other industries who had created the dangerous dumps in the first place.”
While some meetings were at the EPA offices, most were at lunch and in the evenings at many of the finest restaurants in D.C. As for the legality of those meetings, Maloy summed it up like this: “Legally Ms. Lavelle was in the clear. Unless, of course, any of those chemical companies were involved in EPA enforcement actions, or could be future enforcement targets. Then such meetings are cautioned against and regarded as wrongful ‘ex parte’ contacts.”
So while it could be construed that such meetings were not absolutely against the law, they were if Lavelle was meeting privately with companies that had contaminated sites being investigated at the time by the EPA for possible enforcement actions. Companies who were meeting with Lavelle included Allied, Dow, Monsanto, Chevron, Dupont and Union Carbide. While it is likely that Allied had several contaminated sites in the crosshairs of the EPA in 1982, we know for absolute certainty that there was at least one while the company was holding its inappropriate meetings with Lavelle: Allied’s Valmont Butte Mill, which the CDPHE had put forward in 1982 for inclusion on the NPL.
As the extent of Levelle’s questionable actions began to see the light of day in media accounts, even Reagan headed for cover by giving up on his claims of executive privilege and clearing the way for the congressional investigation to move forward. It was a bloodbath for the EPA.
As Time magazine would write in December of 1983, “For months the charges of influence peddling, political favoritism and conflicts of interest ricocheted around Congress. By the time the scandal subsided, more than 20 Reagan administration appointees at the Environmental Protection Agency had resigned under pressure.” Included in the 20 who resigned in disgrace was Anne Gorsuch Burford, the head of the EPA. It would not be so easy for Rita Lavelle.
Lavelle was convicted of perjury and obstructing a congressional investigation and faced a maximum 25 years in prison. Ultimately she received a six-month sentence and a $10,000 fine.
The largest scandal in EPA history was over.
So what would have happened had the Valmont Butte site been placed onto the NPL in 1982? It’s hard to know for sure, but it would likely have cost the city of Boulder a lot of money, even though the city didn’t buy the property until 2000. That’s because the EPA uses four criteria to determine who is a responsible party for contamination at a Superfund site. Qualifying for even a single one of the criteria makes you responsible for the full expense of clean-up at the site. You are, however, allowed to sue to have others declared as responsible parties, who must then share in the costs. The criteria are 1) did you transport any waste to the site? 2) is any waste at the site attributable to you? 3) Did you authorize waste to be placed at the site? 4) are you the current land owner?
Unfortunately for the City of Boulder and we taxpayers, when the city moved its 200 truckloads of radium-contaminated soil from its construction site at Third and Pearl and buried it at Valmont Butte, it quite likely became a responsible party in perpetuity for all future clean-up at the site, at least any clean-up that would involve the EPA and Superfund. Its purchase of the property in 2000 simply means it now qualifies for all four of the EPA’s criteria, as opposed to only three. This likely explains the recent decision by the city to split the $5 million remediation cost of capping the primary tailings pond with Honeywell, the company that purchased Allied and is now responsible for Allied’s contamination at the site.
But more importantly, what ever happened to the important surface and groundwater pathways that the state and county believed were exposing the public to potential danger from the site in 1982?
We will be exploring these questions and more as our series continues in the coming weeks.
—Jefferson Dodge and Elizabeth Miller contributed to this article.