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Going With the Flow

Jay Balano thought it was strange when a woman from the Colorado Department of Transportation walked into his Print Stop store last winter, asking for him by name. He thought it was even stranger when the woman offered to arrange a printing contract with the state worth close to $20,000, with the promise of more to come--a job so big that it would have overwhelmed his small printing operation.

Balano had never done business with CDOT before. But just days earlier, in his role as a Glendale city councilman, he'd been sharply critical of the department at a public meeting held to discuss state efforts to clean up chemical contamination of air and groundwater in Balano's neighborhood--contamination emanating from a CDOT testing lab a few blocks away. The meeting had been an acrimonious one, and Balano had left convinced that he wasn't getting the full story from CDOT or its sister agency, the Colorado Department of Public Health and Environment, which is overseeing the cleanup.

"Getting a straight answer out of those people is almost impossible," Balano says. "Frankly, I distrust two agencies that have every reason in the world to be in collusion with each other."

Balano couldn't figure out if the CDOT printing offer was an inept gesture of goodwill or a bid for his silence. In any case, he didn't think it was coincidental, and he turned down the job. But the peculiar timing of the visit only sharpened his suspicions about the chemical leak, a complicated affair that has fueled political controversies in tiny Glendale and raised troubling questions about the scope and seriousness of the contamination, the parties responsible and the state's ability to clean up its own mess.

"This is a real challenging project," says George Gerstle, a CDOT environmental-services manager. "Most of the hazardous-waste problems in the country aren't in a residential area. We really want to keep the community informed about what we're doing, and we've tried to be as up front as we can."

Yet after six years and $20 million in cleanup efforts, many key aspects of the project are as clear as mud. CDOT officials claim that the cleanup goals required by the health department are absurdly expensive and technically impossible to achieve, but critics say CDPHE hasn't been tough enough on their fellow state employees. CDOT has stressed the minuscule health risk from the leak and characterized community concern as minimal, too. But several area residents and landowners are now suing the state, claiming damages to their health as well as their property.

State health officials insist that the CDOT cleanup is being handled no differently from that of any private polluter. But internal agency documents obtained by Westword indicate considerable behind-the-scenes maneuvering and confusion. Hoping to persuade the state to ease the corrective actions the department must perform, CDOT has attempted to shift the blame for most of the contamination to an as-yet-unidentified source--a source the health department has been in no hurry to track down.

Privately, health officials have expressed concerns about the reliability of contamination reports provided by CDOT, which were used in devising the cleanup proposal; one confidential memorandum warns that the inaccurate data could result in "an expensive folly with potential fallout for all." The politicking has become so intense that some employees within the health department believe the cleanup supervision should be turned over to the federal Environmental Protection Agency, a move both agencies have strenuously resisted.

"If the EPA gets called in, CDOT gets dragged in deeper," says one environmental attorney familiar with the case, "and the health department doesn't look too good, either. But you have to wonder what would have happened if this was a different kind of neighborhood. Can you imagine if this had happened in Cherry Hills? There would be blood."

Bad Water, Bad Air
CDOT's Materials Testing Laboratory on East Louisiana Avenue, the site where the leak occurred, was built back in the 1950s, long before neighboring Glendale blossomed as an enclave of strip clubs, apartment complexes and singles on short leases. In the early 1970s, the department installed two underground tanks to store up to 800 gallons of waste solvents used for cleaning equipment and testing road materials. When maintenance workers removed the tanks in 1987, they discovered holes in the tanks where the solvents had leaked into the soil. But the health department wasn't notified of the leak until after a consulting firm took soil samples nearly six years later.

"The left hand apparently was not informed of what the right hand was doing," says CDPHE spokeswoman Marion Galant. "They put the dirt back in the hole, and that was that."

"We didn't follow up, which was wrong," says CDOT's Gerstle. "But it was a screwup of ignorance, not malice."

Health officials first learned of the contamination in early 1993. Over the next two years, extensive testing determined that the toxic brew oozing from the tanks--including dichloroethene, or 1,1-DCE, a suspected carcinogen associated with liver and kidney disease in lab animals--had reached groundwater and traveled off-site. The underground plume of measurable contamination stretched north into Glendale, almost to the banks of Cherry Creek, finally dropping to acceptable levels in the vicinity of an office building complex that happens to contain the headquarters for the state health department.

"The plume terminates under our building," notes CDPHE's Galant. "I think they call that irony."

The groundwater plume poses no threat to drinking water, since all of the affected area relies on city water supplies. (Wells used in Glendale a few years earlier were located outside the plume.) But the state ordered CDOT to embark on immediate cleanup efforts, including pumping and treating groundwater and installing an impervious liner over the contaminated soil to prevent further seepage off-site. "CDOT is being held to the same standards as any private polluter," says Assistant Attorney General Will Allison.

Critics of the cleanup effort, though, contend that the matter has been handled differently from the very beginning.

"If it was any private company, CDPHE would have been much more stringent," says John Zodrow, an attorney representing several residents who are suing the state and CDOT. "When there's contamination next to a waterway, there's usually immediate federal involvement." In addition, he says, a private company that had failed to report such a spill for six years after it was first discovered would probably be facing millions of dollars in civil penalties, if not criminal charges; no penalty whatsoever was assessed for CDOT's bungling.

Initially, the potential health risk of the leak appeared to be quite small. Although the southern edge of the plume contained chemical concentrations as high as 10,000 parts per billion, the readings dropped to the federal standard of no more than five parts per billion at the northern end--and all of the contamination was contained in supposedly inaccessible groundwater. But after residents began to ask whether the solvents had saturated the soil and caused toxic vapors in their buildings, CDOT began testing samples of indoor air in the path of the plume. In late 1997, the department learned that the samples from several homes and apartment buildings revealed extremely high levels of 1,1-DCE, as high as 93 micrograms of the stuff per cubic meter of air. EPA considers 4 micrograms per cubic meter to be the highest acceptable risk level; long-term exposure to such a level presents a 1 in 10,000 risk of cancer.

The results took CDOT officials by surprise. "As far as I know, it's the first time in the country that they've found indoor-air contamination of this type from groundwater," says Gerstle.

CDOT offered to relocate the residents of 22 apartments and one single-family home, at the state's expense. Roughly half of them accepted. The agency also installed air-filtering systems, similar to radon abatement fans, in a dozen apartment buildings and twenty houses. Experts say that the risk of toxic fumes is basically neutralized as long as the fans keep running, but there is no consensus about how years of previous exposure to the fumes may have affected residents.

Several agencies, including the National Institute for Occupational Safety and Health, take issue with the assertion that 1,1-DCE causes cancer in humans, and CDOT contends that EPA's standards are overly conservative and based on a faulty study. But attorney Zodrow says residents have reported a range of health problems that they believe are linked to the contamination.

"We have clients who've experienced upper respiratory infections, allergic-type reactions, to things as extreme as renal [kidney] failure," he says. "The government's own data explains the symptomology, and it's consistent with the symptoms of our clients." In addition to the suit against CDOT, Zodrow has also filed lawsuits against the owners of four apartment buildings at the southern end of the plume, claiming that they failed to notify tenants of the potential health risks.

All of the people who were offered relocation lived in southeast Denver, within a short walk of the contamination site. No Glendale residents received such an offer, even though indoor-air testing turned up some disturbing news several blocks north of the CDOT property, after the plume entered Glendale. But within a few months, CDOT officials were arguing that the mess in Glendale wasn't really their mess and they shouldn't have to pay for it.

Buy One Plume, Get One Free
Last October, CDOT submitted to the health department its proposal for spending up to $27 million to clean up the indoor-air problems in the path of the plume. Two months later, when it submitted its plan for an additional $13 million in groundwater treatment, CDOT's tune had changed; the shape of the supposed plume of contamination had changed, too.

Further testing had turned up a second plume that seemed to originate from an unknown source somewhere north of Mississippi Avenue and east of Dahlia Street. Although this second plume has many of the same solvents found in the first, the agency reported, it also contains chemicals that hadn't been stored in CDOT's tanks, including PCE, a dry-cleaning solution. It was the department's position that it had no obligation to clean up the second plume, which carries a much higher volume of contaminants and appears to be responsible for most of the problems in Glendale.

"We believe CDOT has a very small, if any, contribution to that other plume," says Gerstle. "We've told the health department that we want to be cooperative, but we can't spend CDOT money on something we didn't cause."

Critics of the cleanup are skeptical of the abrupt discovery of a second plume. "It didn't appear for years, and now it's a wonderful excuse not to do anything," says Glendale landowner and lobbyist Chuck Bonniwell.

Zodrow says that until the source of the plume is identified, he's wary of CDOT's claims. "It could just be that the plume splits and rejoins itself," he says. "Who knows?"

State health officials haven't entirely embraced CDOT's view, but they do say the agency has made a strong case. "CDOT postulated that there was a second plume, and we thought that was a pretty good argument," says CDPHE's Galant. "We have no authority or funding to investigate that plume, though, because we don't know where it's coming from."

Last February CDOT amended its cleanup plans, contending that it shouldn't have to pay for continuing monitoring of the indoor air at the Cherry Point Apartments and several other sites in Glendale. Dropping these sites could save the department millions of dollars in cleanup costs, but the health department hasn't yet approved the scaled-down proposals.

Although Gerstle says the question of CDOT's responsibility for the northern section of the plume is still "under negotiation," Galant says that CDPHE still regards CDOT as a contributor to the plume and will require full cleanup. "What often happens is that we say, 'You guys clean it up, and if you determine who else contributed, you can sue them and recover your costs,'" she says.

Yet the discovery of a second plume also underscores how the CDOT cleanup has taken an unconventional course. Polluters often attempt to limit their own liability by attributing contamination to other sources; but when contamination of unknown origin is detected, it's common for the state to refer the problem to EPA for assessment. (The Superfund program was designed to handle such situations.) That hasn't happened in this instance. Instead, according to sources within the health department, CDOT and CDPHE officials have been meeting to discuss ways to avoid turning the investigation over to EPA.

Gerstle says that CDOT has been sending its data to EPA for review for years. He denies that the department has received any special treatment from its sister agency. "It feels more like spousal abuse than special treatment," he says. "The big question in our minds is the [second] plume. We'd rather have a way to have the state address it, just because of all the hoopla that goes with EPA being involved."

Howard Roitman, the head of CDPHE's hazardous-materials division, says his agency is currently exploring its options for dealing with the second plume. "We've got a few possibilities of how we could track that down, and we're trying to figure out what would be the best way to do that," he says. "We haven't decided whether to approach EPA or if there is another way we could get at it faster."

EPA officials say they're simply in an oversight role in the CDOT cleanup; they haven't been invited to become more actively involved, nor have they been presented with a compelling reason to intervene. "If we were concerned about the quality of the work, we'd increase our level of oversight," says Paul Arell, the manager of EPA's corrective-action unit for the region. "But we haven't done that."

The official assurances haven't done much to allay fear and suspicion in Glendale. Some residents and property owners say that the state is simply trying to save itself the cost and embarrassment of federal involvement and that EPA is reluctant to step on the state's toes--leaving locals stuck with a mysterious toxic plume and a lot of futile finger-pointing.

Lobbyist Bonniwell says that more direct EPA involvement would help clear the air--figuratively as well as literally--and dispel the suspicions that the state is going easy on CDOT. "First they say there is no problem," he says. "Then they say they've remediated the problem. Then they say, 'We'd better not call in the EPA, because it will just stir up problems.' If there is no problem, why is there this adamant refusal to let the EPA in?"

Bonniwell participated in a meeting with CDOT and CDPHE staffers in Glendale in January, the same fractious meeting that had seemed so frustrating to Councilman Balano. Both men say that the state officials were unprepared for the tough questions they were getting and that it was difficult to tell which speakers represented the polluter and which ones were speaking for the agency that was supposed to protect public health.

"If people weren't disturbed and concerned before the meeting, they were afterward," Bonniwell says. "You couldn't tell who was who. When the EPA sits down with a polluter, you don't come away thinking they're one and the same."

"They thought they could gladhand us and promise to do everything but not tell us what's necessary," says Balano.

But Glendale mayor Joe Rice says that many critics of the cleanup are pursuing their own political agendas. Both Bonniwell and Balano are members of the Tea Party, the strip-club-backed insurgents who won three Glendale city council seats in last spring's election (and soon appointed a fourth member to fill a vacancy). The group has since squared off with Rice on everything from restrictions on topless dancing to the town budget. The CDOT contamination has also become political fodder; Tea Party members have attacked Rice for approving construction of a school and education center on the edge of the plume, even though the building has its own underground ventilation system to ward off contaminated air.

Rice has declared the school "the safest place to be if there's any risk at all from the plume." He says the meeting a few months ago, which he also attended, was a "setup" by the Tea Party to try to make political hay out of the problem. "They weren't interested in getting answers," he says. "It was a blame game."

Balano denies any hidden agenda. "The fact that this is riding on the political winds bothers me," he says. "This is a problem that should transcend local politics. We need a united front to get an impartial investigation."

Rice notes that he's the only member of the Glendale city council who actually lives in the path of the plume. He wouldn't stay there, he says, if he wasn't satisfied with the cleanup effort and the information the state has provided about the relatively small health risk posed by tiny levels of chemicals in groundwater several feet below his building. (The risk of cancer is virtually non-existent, he notes, particularly when compared to the risk involved in the tobacco habits of some Tea Party members.)

"I'm not a big conspiracy-theory person," he says. "I believe that CDOT and the department of health want this cleaned up. But if you say you're willing to accept even the smallest amount of risk, then someone will say you don't care. My impression is that when people find out what's going on, they're not all that concerned. The only citizens I've heard from who are terribly concerned are Tea Party members."

Bonniwell suggests that many Glendale residents aren't likely to surface at public meetings without considerable prodding. The town has a significant immigrant population, including Hispanics, Russians and Eastern Europeans who speak little or no English. It's also a very transient population--which, from a health perspective, could be a good thing. As state officials explained at the public meeting, someone who stays a few months in an apartment building in the plume is unlikely to develop any health problems attributable to the contamination.

But that isn't true for everyone, notes Bonniwell, who doesn't live in Glendale. "At the meeting, one guy got up and said, 'I've lived here eighteen years. What am I, chopped meat?'"

All the public meetings and open houses haven't answered basic questions about the health hazards from the spill, insists Michael Barrett, a Glendale resident and Tea Party member. Barrett, who has a medical degree but works in private industry, is troubled by the pace of the cleanup and the health department's upbeat assessment of the long-term risks of exposure to solvents, despite conflicting research on the issue.

"I'm not sure the remediation plans are sufficient," Barrett says. "They've known about this since 1993, but they still don't have concrete plans in place, and now there's another plume that nobody wants to take responsibility for. Who knows what else is coming?"

What We Know That We Don't Know
For months now, directors of the cleanup at CDOT have been urging health officials to relax the standards the department must meet in ridding the area of contamination. The requirements concerning the indoor-air problems are particularly burdensome, the directors say, to such a degree that CDOT insists they can't be met.

In a letter to Howard Roitman of CDPHE last fall, CDOT environmental-services manager Kenneth Gambrill stated that his agency "expressly reserves the right" to challenge any health-department decision requiring cleanup beyond the standards that CDOT itself has proposed as feasible.

In its proposal for fixing the indoor-air problems, the department devoted considerable space to attacking EPA's maximum standards for exposure to 1,1-DCE, noting that the standards were based on a scenario of continuous human exposure to the chemical over thirty years, 24 hours a day. Such an assumption, the proposal argued, "is overprotective of health by over 500 percent."

CDOT's arguments for easing the requirements are both economic and technical. To eliminate more than 90 percent of the risk from the indoor-air contamination in the original plume area would cost roughly $22 million. To achieve the EPA standard of nearly 100 percent--a level that translates into a one-in-a-million chance over a lifetime that a person would develop cancer as a result of being exposed to the contamination--would more than triple the cost of the cleanup, to a staggering $75 million. In addition, CDOT claims that its consultants can't even accurately measure the remaining chemicals at such a low level of contamination.

CDOT has proposed to shoot for a risk level that's five times higher than the EPA standard (in other words, a cancer risk of one in 200,000). At the same time, the agency has sought to cut its losses by disavowing any remedial action in the area encompassed by the second plume, further reducing the cost estimates contained in its original proposal.

It's hardly the first time the health department has been confronted with such arguments, but how the department responds to them has grave policy implications at the highest levels of both agencies.

A few weeks ago, Roitman wrote a memo to CDPHE's new director, Jane Norton, seeking guidance. Roitman observed that Norton's predecessor, Patti Shwayder, had denied a similar request from CDOT last year; one factor in her decision was "the need to treat a sister State Agency the same as any other cleanup site." But, he added, "because of the change in leadership at the State, and within the Department, we would like to know whether the same decision would be made now."

CDPHE's Galant denies that the department is considering revising its standards to accommodate the CDOT plan. "We use EPA's risk standards and toxicity levels, and we always have," she says. "That has not wavered. We want to make sure that people and the environment are safe."

Health officials have other reasons to be concerned about CDOT's proposal, too. Until recently, the data analysis being performed for the agency by a California laboratory, upon which many of the assertions about the size of the plume and the extent of contamination have been based, may have involved some fundamental miscalculations. Last fall, health-department staffers drafted a detailed memo outlining their concerns about the information they were getting from CDOT and concluded that "a large number of false negative data was generated on these projects."

The confidential memo has since leaked further than the CDOT contamination itself, generating questions about accurate data at other hazardous-materials sites around town. The same California lab, Quanterra, is engaged in similar analysis of indoor-air samples at the Redfield contamination site in southeast Denver, once home to a gunsight manufacturer, and at the former Lowry Air Force Base. While there's no evidence the data in those investigations is erroneous, the health-department staffers wrote that the confusion over CDOT's data could complicate the cleanup in several ways.

"It is possible that attempts to commit fraud against the State of Colorado have occurred," the memo warns. "We should maneuver with caution and deliberation to ascertain if this is the case." It was also possible that the errors were unintentional; but in either case, "CDOT may not have appropriately delineated, remediated and monitored the full extent of the area [of contamination]."

Roitman says his department has since obtained several months of raw data collected by CDOT and is satisfied that the lab is now analyzing the data correctly. The new readings aren't radically different from earlier results; if anything, other sources report, the previous data was full of "false hits" that may have exaggerated the scope of the problem. Yet the entire debacle has further delayed the crucial decisions health-department officials must make about the second plume and the standards CDOT will be required to meet.

It's been twelve years since a maintenance crew pulled the leaky storage tanks out of the ground, and CDOT estimates that it will take another ten to twelve years to clean up the damage. The department plans to inject nutrients into groundwater to multiply bacteria that will then devour the contaminants; as the groundwater is cleaned, the need for air monitoring in various buildings also diminishes.

That's the plan, anyway. But Zodrow sees the cleanup effort to date as riddled with mistakes and delays, often to the advantage of CDOT. "If this contamination had any other source, the Superfund program would have stepped in by now," the attorney says.

CDOT may not end up getting all the breaks it wants, but staffers can still consider their situation fortunate compared to that of polluters in the private sector. Last month the CEO of Thoro Products was sentenced to prison for illegal storage and disposal of hazardous wastes. Thoro, a manufacturer and distributor of cleaning products, had allowed chlorinated solvents to seep into groundwater in a light-industrial area of Arvada over a period of many years.

The plume generated at the Thoro site is much larger than the one in Glendale--up to a half-mile wide and 1.5 miles long--and reaches at least one well that provided drinking water for two homes and a local tavern. But there was no evidence of indoor air being poisoned by Thoro, and the degree of groundwater contamination at most test sites was no more severe than that caused by the CDOT leak. Both cases involve careless storage of similar chemicals and considerable delay in reporting leaks after they occurred, yet the cases were handled quite differently. The prison sentence given to Thoro president Richard Newman by Jefferson County District Judge Frank Plaut is believed to be one of the toughest ever handed out for environmental crimes.

The state gave Newman fourteen years. Meanwhile, in a heavily residential neighborhood on the other side of the metro area, the state gave itself another decade or two to make things right.

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