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Going to Ground

A private investigator tracks a toxic trail through Arvada.

Despite the almost random way the EPA stumbled on the chlorine plume under the Clear Creek neighborhood, the agency was able to focus its investigation narrowly. There are only a handful of businesses in the area, including some warehouses, a car-wash-equipment manufacturer--and, up gradient of Vintage Sales, Thoro Products.

Yet for Dickerson, the first order of business wasn't necessarily proving that the pollution wasn't his client's fault. It was determining whether the next-door chemical company and its owners had enough money to make them worthwhile to sue. The investigation didn't take long.

For the past half-century, Thoro Products has been a family affair, run by a man named Dick Newman and, since the late 1980s, his son, Rick. Dickerson's research quickly revealed that it has been a successful business.

For starters, using county real estate records, Dickerson discovered that the elder Newman lives in an exclusive, gated community in the Foothills, with a house and property appraised at nearly a half-million dollars. Newman's name has appeared in newspaper society pages, most notably for hosting the annual Citizen of the West banquet. His resume has one other interesting footnote, given the nature of Dickerson's investigation: Dick Newman served on the Jefferson County Board of Health from the early 1980s until the spring of 1990.

Dickerson also discovered that Rick Newman raises Arabian horses and owns acres of horse property in Gilpin County. "At that point," Dickerson says, "I knew all I needed to know, and I stopped that part of the investigation."

The gumshoe's next job was to try to find evidence that would, if not precisely pin the blame on Thoro, at least make it seem as though Thoro were the type of company capable of pollution. At first glance, it didn't seem like there was much to work with. By the standards of Denver's largest polluters, such as Asarco in Globeville, Thoro is strictly small-time. EPA records note only one penalty against the company.

Early on the morning of March 22, 1990, commuters driving through the Clear Creek area noticed the distinct odor of chlorine. The potential for danger was high. Wendy Silver, an EPA lawyer who prosecuted the case, recalls that several children waiting for a school bus were taken off the street by police cruisers before the gas cloud dissipated.

The size of the gas release required Thoro to report it to several emergency response agencies. One of them, Jefferson County's Local Emergency Planning Commission, was never called. Company officials explained their failure to make such a call, claiming that by the time they learned of the leak the commission already knew about it, so there was no reason to report it.

The company also had no adequate explanation as to why the National Response Center had no record of the chlorine release. Silver recalls that Dick Newman told EPA investigators he had tried several times to phone the center but that the lines had been busy.

But in fact, according to center phone logs, "there was no way the phone could have been busy then," Silver says. The EPA recommended an $80,000 penalty against Thoro; it settled for $35,000. In October 1993 the company paid the final installment of the fine.

A Jefferson County investigation into the same incident resulted in no action. Although Dick Newman was on the health board at the time, Dr. Mark Johnson, the county's director of public health, says he never received any pressure to extend special treatment to Thoro during Newman's tenure. Newman was, however, reportedly asked to step down from the board after the chlorine release.

Thoro Products has one other black mark against it, in connection with a storage facility it operated near the Rocky Flats Industrial Park. In 1982 Thoro had applied for a storage permit at the site but was rejected by the EPA. Two years later, however, the federal agency turned over the job of considering such applications to the state, and in 1984 Thoro re-applied.

The company's application to store hazardous chemicals inside 55-gallon drums at the Rocky Flats site was opposed by neighbors. The cities of Thornton, Arvada and Westminster, which all drew their drinking water from the nearby Standley Reservoir, also objected to it. "It remains the position of the City of Thornton that no permit should be issued for hazardous waste storage within a municipal watershed," the mayor wrote in one letter of opposition.

Despite the concerns, in October 1985 the state health department granted Thoro's permit--one of the first hazardous-waste permits the state issued. Within three months regulators had catalogued numerous minor violations. By 1989, after several attempts to force the company into compliance, the state gave up; in April 1990 it pulled Thoro's permit.

"While individually some of the past violations were not serious threats to human health or the environment, collectively these violations indicate a lack of attention to and disregard for the permit conditions and regulatory requirements," the health department concluded, adding that "two violations presented serious threats of contamination to the environment."

In retrospect, the state may have ignored the more serious problem. Soon after the health department pulled Thoro's permit, groundwater testing done next door by the EPA suggested there was chlorine contamination on the company's industrial-park property. "You could just look at the data and it was clear; the chemical level was well in excess of state standards," recalls Walter Avramenko, a hazardous-waste cleanup and permitting unit leader for the department.

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