Going to Ground
Three weeks ago an unlikely group of lawyers, representatives from the Environmental Protection Agency and a private investigator met with prosecutors from the Colorado Attorney General's office. The purpose of the gathering was to decide whether it was worthwhile, or even possible, to bring criminal charges of polluting against a mid-sized Arvada chemical company.
For the past five months, Thoro Products Co., which manufactures household cleaners and other common chemical agents, has been at the center of a whirl of activity--scientific testing, legal maneuvering, pound-the-pavement sleuthing--set in motion when Thoro's neighbor learned that a toxic chemical pool lay under his property. Notified of the problem by the EPA, he hired his own team of investigators and shifted the blame to Thoro.
Up until that point, Thoro's environmental history, as chronicled by the various agencies that keep tabs on such things, was relatively unremarkable. The company had once been fined by the EPA, and several years ago the Colorado Department of Health yanked a hazardous-waste storage permit.
Now evidence is beginning to surface that the company's behavior may have been worse than its record shows. In their efforts to pinpoint the origin of a chlorine plume that appears to have spread under the Clear Creek neighborhood northwest of Denver, EPA investigators have been closing in tighter and tighter on Thoro's Arvada property. And several miles away, next to Rocky Flats Industrial Park, state health workers suspect another chlorine spill may have originated at a second Thoro facility.
At the end of the chemical trail are a number of former Thoro employees. Mostly low-wage and unskilled workers, they say they have quietly battled chronic health problems as a result of their long years working at the chemical company.
It is not uncommon for investigators to arrive at a polluter's door through such a roundabout fashion; the way current environmental laws work, the final culprit often is not the first to be accused. But the Thoro case also illustrates how seemingly random and haphazard--and ineffective--the patchwork enforcement of those laws can be. If Thoro ultimately is found to be responsible for the contamination around its two facilities, there were numerous instances when it might have been discovered earlier. Even when regulators had reason to suspect pollution or had opportunities to check, they postponed acting for years.
"It's not like Thoro was out there hiding in the weeds. People knew what they were doing," says Tim Gablehouse, an environmental attorney who has become involved in the case. What's unusual about the Thoro case, Gablehouse continues, is that a series of private parties, and not government regulators, are the engines driving the legal push against Thoro. (A spokeswoman for the EPA agrees that Gablehouse has given them some helpful evidence. "But we would've gotten there anyway," she adds.)
Much of the damaging information against Thoro was scared up by a dapper private gumshoe hired by Gablehouse to investigate the pollution. And Joe Dickerson is getting impatient. "I told the attorney general, 'Hell, if I've done your investigation for you, wrapped it up in a bow and handed it over, so be it. Let's just do something. One would wonder why something hadn't been done before about this."
For nearly two decades after World War II, residents and businesses in the neighborhood centered roughly where I-76 crosses Clear Creek at the border of Denver and Jefferson counties disposed of their waste in the Sheridan Dump. A federal report describes the 112-acre site as a former repository for "sanitary sewage sludge, commercial, municipal and industrial waste, and other unspecified hazardous wastes." Today much of the old landfill sits underneath the Berkeley Village Mobile Home Park.
The dump was first identified as a potential hazardous-waste site in 1978. Two years later it was proposed for cleanup under a new set of federal laws known as the Comprehensive Environmental Response, Compensation and Liability Act--known collectively as Superfund. But investigators decided the Sheridan Dump didn't meet the Superfund standards, and so it was deferred to another, lower-level state hazardous-waste program--where nothing much happened for the next decade or so.
"It had been lingering for a while," says Pat Smith, a geologist and site-assessment manager for the EPA's regional office in Denver. It was during a routine review of her files, in 1990, that Smith noticed the EPA hadn't closed the Sheridan Dump case. A closer look suggested a possible error; perhaps the dump should have been cleaned up under Superfund. After Smith's discovery, though, five more years passed before the EPA began testing water under the site, in May 1995.
Within weeks it began to look as though the Sheridan Dump site was relatively clean, after all. EPA chemists uncovered nothing to indicate that the old landfill was leaking toxins into the groundwater. In fact, of all the water samples analyzed, only one sounded any alarms--and it wasn't related to the landfill.
That single sample showed extremely high levels of a family of organic compounds known as chlorinated hydrocarbons. The chemicals are commonly found in household cleaners; however, they are considered highly toxic, and the discovery of even very low quantities, as minute as four parts per billion, is enough to throw public-health officials into a panic.
And there was additional reason for worry, because the tainted sample had been taken out of a private drinking well.
The EPA acted quickly. Because the level of chlorine chemicals was so high, the agency started an "emergency response action." Smith determined that two households and one business, a neighborhood tavern, drew drinking water from the well, and she ordered that all three be placed on bottled drinking water immediately. (None of the users had previously reported any health problems.) The search for the upstream polluter, meanwhile, was just beginning.
Smith turned the case over to a six-year veteran of the agency, an on-scene coordinator named Joyce Ackerman. A mechanical engineer by training, Ackerman began playing a geological game of Battleship, trying through a combination of guesswork and science to determine the source of the well's pollution. Using a tool called a geoprobe, a hydraulic drill mounted on the back of a Chevy Suburban, and a pump to draw water out of the hole (Arvada's water table is so shallow that each hole had to be only ten or twenty feet deep), Ackerman began siphoning water at around 66th Avenue and Sheridan. The dozens of tests she has conducted since then have drawn her continually up gradient, and by early July 1995 she was drawing water out of locations around 58th Avenue and Lamar Street, about a mile away.
As she has gone about her work, Ackerman has contacted dozens of property owners seeking permission to drill holes on their land. On November 14 Ackerman provided sample results to one of them, the owner of 5889 Lamar Street, a Golden businessman named William Mathews. They showed that a thick, toxic tongue of chlorine lapped under his property.
Mathews, through his lawyer, declined to be interviewed for this article. Public records show he purchased his Lamar Street property in June 1993 and opened his automobile business, Vintage Sales, there a year later.
Records also show that before buying the land, Mathews hired an environmental investigator to check for potential pollution underground (some gas tanks had been stored there previously); the consultant concluded that the soil at 58th and Lamar was relatively clean.
Mathews first learned his property was contaminated when Ackerman stopped by to deliver the results of her underground water sampling. He apparently knew enough about environmental laws to realize he could be in for an expensive legal battle.
Now sixteen years old, the laws collected under the Superfund name have become fertile ground for lawsuits, since they force almost anybody associated with a polluted property--current and former owners, next-door neighbors, etc.--to participate in an extremely expensive game of tattletale. Which is exactly how it was intended to work.
"A lot of prime real estate in this country is contaminated, so the question becomes, 'Who should pay for it--the taxpayers or the responsible parties?'" explains Fred Cheever, an environmental-law expert at the University of Denver. "If you decide it should be the responsible parties, how do you find out who they are? You have to do an investigation. Well, then who should do the investigation?"
In answer to those questions, Congress created a sort of intentional paranoia. It begins, says Cheever, "when the EPA comes to you and says, 'You got pollution under you--what are you going to do?'"
Under the Superfund laws, once he is notified of pollution on his property, it is up to the landowner to prove it wasn't his fault; otherwise, he can get socked with a cleanup bill that easily runs into the millions of dollars. Generally, the landowner does this by mounting his own environmental investigation and, if all goes well, pointing the finger at someone else, who must then defend himself and implicate another, and so on. In theory, the process ends when--a crowd of lawyers later--the whole mess is untangled in some sort of settlement while the EPA looks on.
Aware of how the blame game was played, early this year Mathews hired Gablehouse, a downtown Denver environmental lawyer. Among other clients, Gablehouse represents the current owners of the Summitville Mine, one of Colorado's biggest, best-known and most expensive toxic-waste sites (cleanup costs there run $35,000 per day).
In March, Gablehouse hired Joe Dickerson.
Joe Dickerson is a soothing mixture of down-home Texan and successful businessman. Although his rural East Texas drawl and Southernisms still hang on him, his office in chic LoDo is richly paneled with dark woods. He wears a pinky ring and passes personal memos on a pad of paper from the Beverly Hills Ritz Hotel.
Dickerson, who looks more like Burl Ives than Sam Spade, worked for a decade for the Houston Police Department tracking white-collar criminals, largely in the oil-and-gas industry, before breaking off to start a private investigation business. Since then he has specialized in financial snooping; or, as he puts it in one of his many brochures, "Can they hide it deeper than I can dig?" In 96 percent of the cases, he claims, the answer is no.
For the past five or six years much of Dickerson's business has stemmed from the booming field of environmental law that sprang up around the Superfund legislation. His financial-investigation skills have come in handy: One of the more cynical aspects of the anti-pollution laws is that a person's or company's financial health can matter at least as much as their accountability.
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.
Despite preliminary evidence hinting that a chlorine plume was pooled under the Thoro property, over the next five years the case was passed around the state office. "It languished," Avramenko says. "It's something we should have been involved with several years ago." Several workers responsible for the file quit, he explains, and the case got lost in the shuffle. Only recently did the state agency begin to follow up on the reports of contaminated groundwater.
For Joe Dickerson's purposes, though, finding evidence in government records that Thoro may have accidentally polluted in the past was one thing. Demonstrating that the spills were a common, and intentional, practice over a long period of time was another.
About three miles to the west of Thoro Product's Arvada plant, in a narrow, single-story brick quadplex that sits perpendicular to the street, Larry Prather is finishing his breakfast. The living room is decorated with framed pictures of sunsets, and the television is playing loudly. Prather has closely cut black hair and wears black cloth shoes with white socks and khaki shorts. He moves in quick jerks and sometimes has difficulty speaking.
"I was the floor manager at Thoro for thirty years," he begins. "I started working part-time there in the summer during high school when I was fifteen. I mixed the chemicals, except for the bleach; that was another guy's job."
He stopped working there, he says, after the seizures and blackouts became too frequent. At first the doctor told him he was simply overtired from working twelve-hour days. Later, Prather says, he was told by his physician that it was the constant exposure to chlorine and ammonia at Thoro that was exacerbating the seizures, and that he needed to quit. He did so in 1990; since then he has been living off disability and Social Security payments, along with his wife's income.
He says it's no mystery where the chlorine plume under William Mathews's property started. "You better believe there were spills," he says.
"On the east side of the line," Prather continues, "we ran ammonia and glass cleaner and spot remover and paint thinner lines. If there was leftover stuff in any of them, we'd put it in a five-gallon bucket and dump it out the window onto the ground. We'd just open the window and pour it out. It would just run down this dirt gutter and soak into the ground.
"Other times, when we were cleaning out the tanks inside, we'd hose out the tanks and collect the water and chlorine into buckets and then just toss it out the door or out the window."
Prather says there were other ways the company's chemicals made it into the ground: from leaking storage tanks outside the plant, during transfers from tanks into the product lines; and when the chemicals were being pumped out of railroad cars. "The railroad tank would come in, and we'd hook the hose to the car and it would leak like a sieve, right down into the ground, maybe 25 or 30 gallons at a time," he says. "I even called the health department on them several times. I'd call and say, 'My name is Larry Prather and I work at Thoro Products, and I want to report a chemical spill.' And they'd say, 'Again?'
"They'd call up Mr. Newman and give him another warning," he continues. "I just told them the damn truth. And they would tell him to clean it up, and three weeks later it would happen again." (Both the state and the Jefferson County Health Department say they have no record of such calls.)
Prather isn't the only one who says he saw spills at Thoro. "We would have buckets of bleach or ammonia that were extra, and we'd just throw them out the window or out the door," says Charlie Gallentine, who worked at the company for eight years before quitting in 1988. "It happened almost every day. It went right in the dirt--chlorine, ammonia, leftover spot remover."
"Most of the big spills there were mechanical," adds Sheila Walker, who says she worked at Thoro on and off from 1974 through 1988, with occasional breaks to have children. "It wasn't for lack of safety or training. But things would break or overflow, or somebody would trip over a hose and chlorine would leak out. We would unload chemicals from the railroad cars or huge storage tanks with a six-inch hose. Now, you can't pump a hose dry, and so when you disconnected it, inevitably some would get spilled.
"We were supposed to wash out the big tanks, and so we'd collect the water from the cleaning and throw it out the window or door. It was pretty diluted, maybe one gallon chlorine to four gallons water at the beginning, and by the last rinse maybe one-to-ten. But I guess when you add all that up to over thirty years, it accumulates pretty bad."
Like Prather, Walker also claims her health has suffered from her time at Thoro. Most of her problems, she says, can be traced back to two industrial accidents there, the worst of which was in 1987.
"It was my own fault," she says. "I was loading a 55-gallon drum of ammonia into a tank, and I bumped a drum and broke off the spigot. Pretty much all 55 gallons of the ammonia spilled. I chose to run the wrong way--instead of running upwind, I ran downwind. So my lungs got burnt."
Since she stopped working at Thoro at what she says was her doctor's advice, Walker has had difficulty finding a job. "When someone coughs until they throw up, people think you are very sick, and they don't want you around," she says.
As a result, Walker's money comes mostly from Social Security disability payments. But that is temporary: A physician recently told her the time between she quit Thoro and when she was diagnosed with chemical burns on her lungs was too great to forge a direct link between the two.
"I can't even tolerate hairspray and perfume and cleaning supplies," she concludes. "But we never wore safety masks. So in a way it was my own fault."
The state attorney general's office refuses to say at what point it is in any investigation of Thoro, or even if it is conducting one at all. Mark Gutke, an environmental investigator for the Jefferson County Sheriff's Department, confirms that his department is "looking at it as a criminal investigation" but adds that any charges against the company are some time off. Both the state's and the county's ability to charge Thoro with any crime may be stymied by the statute of limitations.
The EPA says it is unwilling to accuse Thoro of anything until it has evaluated the final water samples taken several weeks ago. "Until the final physical evidence is in, it's still an open question," Ackerman stresses. "I'm not ready to point the finger at anybody."
The trail of legal documents that will dog the case to its conclusion is just beginning to accumulate. Four weeks ago Mathews launched a pre-emptive strike against being tagged as the polluter of his property by filing a lawsuit in U.S. District Court against Thoro. The lawsuit also named as a defendant Dow Chemical Co., which once used the Thoro site to store chemicals and which has the additional advantage of having cavernous pockets. Thoro has yet to respond to the lawsuit.
Mathews reportedly is also considering suing the environmental consultant who mistakenly gave his Arvada property a clean bill of health. And Larry Prather says he is considering his own legal action against his former employer for providing the working conditions that he says ate away at his health.
In the meantime, the process of tallying the cost of the Clear Creek chlorine plume has already begun. Soon after placing the families and business that had been drawing water from the contaminated well on bottled water, the EPA paid for the installation of a carbon filtering system at each location.
But even that fix is temporary. The filters have been replaced twice so far, at a cost of $2,000 each. The cost will climb considerably higher when the county provides a permanent solution to their polluted well, either by drilling into a deep-water aquifer or attaching to Arvada's municipal water system.
And that doesn't begin to consider the expense of restoring the land and water to a healthy condition. "If you wanted to clean up this groundwater to its original condition, it's going to take decades," says the EPA's Ackerman. "There's nothing cheap about this.
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