It has been more than five years since a settlement was reached in Smokebrush Foundation v. City of Colorado Springs. The lawsuit stemmed from Smokebrush’s claim that staff was harmed by contaminants from a former Colorado Springs Utilities coal gasification plant site (25 Cimino Drive) that migrated onto theirs (219 W. Colorado Avenue).
The Settlement Agreement awarded $500,000 in damages to the plaintiffs and directed the City “or its successor in interest” to the 25 Cimino Drive property to “pursue a voluntary clean-up plan (VCUP) for remediation of the contaminants which were the subject of this lawsuit” with the Colorado Department of Public Health and Environment (CDPHE) – and to do so “as soon as reasonably possible.”
The “successor in interest” to the 25 Cimino Drive property is Norwood Development Group, a large and politically powerful developer in Colorado Springs, which received the property from the City in a land swap in December 2020 after the Settlement Agreement was signed the previous July. Negotiations on the land swap were ongoing as the lawsuit played out in court.
“The 25 Property Owner will use commercially reasonable efforts to obtain CDPHE’s approval of the VCUP application within one (1) year of the Plaintiffs’ signing of the Release as noted above, all subject to CDPHE’s timing and approval process which cannot be guaranteed or controlled. The Defendant’s intent is to have the VCUP application submitted as soon as reasonably possible pursuant to the terms of this Agreement,” the Settlement Agreement states.
It also states, “The 25 Property Owner will consider in good faith having its VCUP application take into consideration the remediation of any such Contaminants that may have emanated from the 25 Cimino Property and migrated onto 219 W. Colorado Avenue.”
Settlement Agreement – Smokebrush v. City of COS
However, the Pikes Peak Bulletin’s records request to CDPHE turned up no clean-up plans for 25 Cimino since the lawsuit, and the site – located across the street from America the Beautiful Park and near the US Olympic and Paralympic Museum – is today a paved lot with weeds sprouting through the cracks.
The Bulletin filed another records request with CDPHE for “info on any [voluntary clean-up plans] or other remediation that has occurred at 219 W. Colorado Ave since 2013.” This yielded no results other than reports related to X-ray machinery used by a dental practice operating at that address.
Norwood did not respond to emails, voicemails, or an in-person visit to their downtown Plaza of the Rockies office requesting comment for this story.
Incidentally, the Plaza of the Rockies, which is owned by Norwood, also houses offices of Colorado Springs Utilities.
The contamination and the trade-off
In 2013, the founder of the arts and wellness nonprofit Smokebrush Foundation, Kat Tudor, was leaving the Trestle Building, where Smokebrush was housed, when she was smacked in the face with dirt from demolition work on the site of the coal gasification plant. This event, plus other health issues experienced by her and her staff, led to the lawsuit Smokebrush Foundation v. The City of Colorado Springs.
Complaint-Smokebrush v. City of COS
In 2013, Michael J. Kosnett – a physician specializing in occupational and environmental medicine and toxicology, with a lengthy resume of bona fides – signed an affidavit used in the Smokebrush lawsuit. In the affidavit, Kosnett stated he had reviewed documents and test results. “I opine that [25 Cimino] contains high levels of benzo(a) pyrenes and related compounds,” he said, adding that the same was discovered on the Smokebrush Foundation property at 219 W. Colorado Ave.
“Further remedial action on Smokebrush Foundation property is needed to protect public health because the level of benzo(a)pyrene and related compounds on the property substantially exceed Colorado Risk Based Screening Levels and the US Environmental Protection Agency Soil Screening Levels for industrial property,” he stated.
He concluded by saying, “These particular compounds and contamination levels fit a pattern commonly observed on and in the vicinity of former manufactured gas plant operations.”
Kosnett Smokebrush Affidavit 8-22-13
The City/Norwood land swap traded the City’s 3.35-acre 25 Cimino plus 125 Cimino, totaling 5.58 acres, for a prime 1.12 acre-tract also near America the Beautiful Park. The trade was heralded by City officials and observers as a win for the City, both at the time of the trade and now. In an April 2 statement to the Pikes Peak Bulletin, a City spokesperson said, “The land acquired through the exchange supported multiple public benefits, including water quality improvements, access to the Pikes Peak Greenway, and future vehicular connectivity to Cimino Drive.”
Investigative journalist Pam Zubeck, who now freelances for the Bulletin, wrote a story on the lawsuit titled “Toxic legacy: Lawsuit over contaminated downtown site heads to the Colorado Supreme Court” in 2017 and another on the land swap called “Toxic trade-off: City’s deal to rid itself of contaminated land remains pending a year after approval.”
Toxic Legacy, image courtesy Colorado Springs Pioneers Museum
Toxic Trade-Off, image courtesy Colorado Springs Pioneers Museum
The “Toxic trade-off” article says:
The new owners of the contaminated lots would be Norwood Development Group, owned by David Jenkins, the region’s biggest developer.
Developer Chuck Murphy, who owns land to the north, called the deal “a no brainer” for the city. “We looked at this property in detail,” he told Council on April 25. “It looked like the Love Canal [a Superfund site in New York that infamously sickened people who lived there] and I was scared to death. We’re looking at hundreds of thousands of dollars [in remediation costs], and how many people have the ability to handle it?” He went on to herald the swap as “a great thing for the city” adding “I don’t know of anybody else that would take it on.”
In addition to owning properties on Cimino, Norwood is the master developer for the Museum and Park Urban Renewal Area which includes Cimino Drive and blocks to the east. Jariah Walker, executive director of the Colorado Springs Urban Renewal Authority (CSURA), said plans for the area were derailed by the Covid pandemic and CSURA has not been presented with an updated timeline of development.
Contamination remains, but CDPHE and City not worried
While records requests showed no clean up efforts made post-lawsuit at 25 Cimino or 219 W. Colorado, CDPHE does not believe the contamination poses a risk to public health.
A CDPHE spokesperson said, “There are contaminants present in [25 Cimino’s] soil, but approximately 95% of the property is covered by an asphalt cap. This prevents these contaminants from mobilizing, making the risk of public exposure extremely low. For health risks to occur, a person must have a completed ‘pathway’ to the contamination, either through ingestion, inhalation, or skin contact. We have no evidence indicating that anyone is coming into contact with this soil or any potentially impacted groundwater related to the site.”
While the 25 Cimino site is capped, the Settlement Agreement references “migration of contaminants … by virtue of historic subsurface contamination.” The Bulletin asked CDPHE if it had any concern about contaminants migrating into America the Beautiful Park as had happened with the 219 W. Colorado property.
The CDPHE spokesperson said, “All the soil that was used to construct the park was tested for contaminants before being placed.” America the Beautiful Park was opened in 2005.
However, CDPHE said, it does not know the full extent of the contamination which may have trespassed off 25 Cimino. It says the site is not contaminated enough to trigger mandatory oversight.
“Investigations at 25 Cimino, conducted by the property owner [Colorado Spring Utilities] in 2008 to determine the nature and extent of contamination on the property, were not thorough enough to meet our Voluntary Cleanup Program requirements. Because this property is private, and there is no indication of an imminent threat to human health or the environment that would trigger our regulatory oversight, we lack the regulatory authority to demand the full characterization necessary to make a definitive assessment of the extent of contamination,” the spokesperson said.
CDPHE letter to Colorado Springs Utilities Re Voluntary Cleanup Plan Review
The executive summary of a Colorado Springs Utilities report from July 2012, related to a proposed project at America the Beautiful Park, states, “The contamination associated with the gas plant site is contained in the soils and groundwater beneath the gas plant site. Based on the information contained in the above reports, the groundwater flow direction is to the south with no migration observed west of Cimino Drive [where America the Beautiful Park is]. Migration to the south extends approximately 150 feet from the former manufactured gas plant site location.”
Colorado Springs Utilities Executive Summary Environmental Record Review July 2012
While the executive summary states the contaminated groundwater flows to the south, 219 W. Colorado Avenue is north of 25 Cimino Drive.
Since contaminants travel in groundwater, and groundwater flows can change over time, the Bulletin asked the City of Colorado Springs if there had been any monitoring – say, in the last five years – to make sure contaminants from 25 Cimino were not intruding into the park via groundwater.
The City said it has not done any testing for contamination in America the Beautiful Park in the last five years and has no plans to do so.
