Marmalade at Smokebrush is a tranquil downtown retreat where people gather to heal or manage pain through yoga, or share a coffee drink with friends, or take a class in dance or jewelry-making. The yoga studio is equipped with special mats and slings and other items that enable instructors to assist their most fragile clients, such as the elderly, those recovering from serious ailments, or those coping with life-threatening illnesses.
Nestled inside the Trestle Building, it's just about the last place you'd expect to get blasted with deadly chemicals. But tests of soils taken from around the building show sky-high levels of either confirmed or suspected cancer-causing substances, polynuclear aromatics like benzo(a)pyrene, chrysene and benzo(b)fluoranthene.
Katherine Tudor and Don Goede, founder and executive director, respectively, of the Smokebrush Foundation, say they don't have to look far to find the source of these chemicals. The city-owned site at 25 Cimino Drive, just south of the Trestle Building and just east of America the Beautiful Park, is known to be full of coal tar from a hundred years ago, when an old gas plant operated there. Tudor and Goede themselves have been warned in the past, by a city representative, about disrupting the soil in the area.
Which is part of the reason why they're so frustrated with the city's recent demolition of the Colorado Springs Utilities administration building on that site, as well as an old warehouse nearby. They say the city and its contractor, Hudspeth & Associates of Englewood, didn't take proper precautions to keep dirt from blowing, or to handle the asbestos that may have been in both buildings.
The other part of the reason for their angst: the way they've been treated as they've raised their concerns.
Tudor says she was blasted with dirt and dust from the site in high winds on March 4. Following the city's own advisory for such incidents, she reported an encounter with suspected hazardous materials, In response, she says, officials told her not to worry, that it was "good clean dirt." According to Tudor, they also said her complaints were "holding up progress."
Tudor, a Colorado College graduate who's been active in the local arts scene for years, has been in touch with Mayor Steve Bach and his chief of staff, Laura Neumann, but hasn't been satisfied with their responses, either. So she, Goede and Smokebrush itself filed a lawsuit in March, alleging the city and contractor "have allowed asbestos, heavy metals and other toxic substances to migrate offsite in a manner than [sic] has harmed Plaintiffs."
The suit, which doesn't seek a specific dollar figure in damages, also accuses the city and contractor of creating a "public and private nuisance" at the Trestle Building and America the Beautiful Park.
Since filing, Tudor and Goede have persuaded the city to allow them to gather and test soil samples at 25 Cimino. Like those from tests on the Trestle property, the results from here are worrisome. Although a confidentiality agreement bars disclosure of exactly what was found and at what levels, Tudor says, "The results do not show that it was 'good clean dirt.' That would not be an accurate depiction."
The city has refused an interview, but in written responses assures, "The city's remediation efforts go well beyond required environmental protections."
At the epicenter
It was between 1880 and 1931 that a gas plant operated on the property in question, just south of the Colorado Avenue bridge. Decades after it closed, Utilities built an administration building there. Then, a little more than a decade ago, those operations moved to the Leon Young Service Center on Hancock Expressway, and Utilities sold the property to the city for $6 million.
It rented the space to Cottonwood Artists' School in 2004, but had bigger long-term plans, envisioning the 5.8-acre parcel as a cornerstone for the Southwest Downtown Urban Renewal Area. There, developers would build a convention center, a hotel, shops, restaurants and apartments to invigorate the downtown area and enhance one of the city's "jewels," America the Beautiful Park.
Dedicated in 2005 and built at a cost of $11 million, that park took a while to catch on. But today it hosts many community events, such as walks and runs to benefit nonprofits, Pikes Peak Arts Fest and patriotic events such as the 9/11 commemoration. Its Americans with Disabilities Act-accessible playground attracts numerous families in nice weather, as does the Continuum Julie Penrose Fountain, dedicated in 2007. The city's website says the park has been meant to serve as a "catalyst that will start the redevelopment of the surrounding area."
In 2009, the city told Cottonwood (now known as Cottonwood Center for the Arts) to move to make way for a hotel project. At the time, the clean-up cost for the site was estimated at $1.5 million. In a statement, the city explains: "The upward of $1 million estimate came from a third party who had planned on doing construction on this location, which would have required potentially extensive underground remediation."
But before it even got underway, the project faded amid the recession. Sitting vacant, the building was then decimated by vandals and by the police SWAT team ("Completely trashed," News, Nov. 18, 2010), which conducted drills there involving detonations and rammed doors. It had been pretty quiet since.
Last June, an Urban Land Institute Study recommended putting an "Arts and Entertainment Village" in the Urban Renewal Area, along with "a proposed new combination baseball stadium and outdoor performance center, museums, science centers, and the myriad of other visitation uses that the panel feels are possible." Bach has since formed a Downtown Leadership Group, of which the URA is part, that's charged with exploring these and other ideas.
The city's first step to start rehabilitating the site was essentially to remove the building and cap the parking lot. On July 6, 2012, Hudspeth submitted the low bid of $148,852 to raze the buildings and remove the basement to make the site "development ready," bid documents state.
The company applied for an asbestos abatement application for the site in November from the Colorado Department of Public Health and Environment. "That work was completed according to the permit," state Health Department spokesman Mark Salley says in an e-mail, noting the city's consultant, Walsh Environmental Scientists and Engineers, oversaw the work.
In February, the state Health Department's Air Pollution Control Division received two demolition applications from Hudspeth for the site, one for the main building and another for the warehouse. "A certified asbestos building inspector signed off on the permit applications stating that all regulated Asbestos Containing Material (ACM) was removed from the buildings," Salley says. In addition, he says, the contractor signed a document stating all refrigerants had been properly recovered and all luminous exit signs (which can contain radioactive materials) were disposed of properly.
The work was to take place from Feb. 6 to March 15. On March 15, the contractor told the state three asbestos covered pipes were found buried about two feet below ground, prompting the contractor to erect a "containment," or tent, over the pipe, Salley says.
A Hudspeth attorney says in a statement that the company has done everything according to the bid, regulations, plans and specifications of the city, and notes the company has "no history of environmental cleanup violations."
Tudor, who claims the tent wasn't put up until she and Goede complained, has asked the state to investigate further. Asked for an update, a state official says via e-mail, "We respond to all complaints. However, complaints are strictly confidential and we are not able to identify individual complainants."
A slap in the face
Smokebrush has been a local artistic powerhouse since the early 1990s. It's offered countless workshops, art shows and even concerts, but it's best known as the organization that donated the Uncle Wilber water feature in Acacia Park to the city in 2000. In fact, Smokebrush remains active in raising funds to help the perpetually cash-strapped city government maintain it each year.
In 2011, it moved to (and bought a substantial part of) the Trestle Building. That April, Tudor and Goede sought to remove an outdoor fence, and called the city's attention to their plans. In response, city facilities manager Robert Lund warned Goede via e-mail: "Due to the contamination in the soil ... the soil cannot be disturbed." Lund also wrote, "Everyplace that there is a fence post you will need to cut it off level with the ground and hammer the sharp edges over" so as not to disturb the soil.
Three months later, when Utilities dug in the vicinity to install a pipeline, Tudor contacted the city with concerns about contaminated dirt. She says she was assured the dirt was safe.
Then came this winter. By March 4, crews had taken down the gas building and were working to remove the warehouse, which sits just a few feet from the Trestle property. As Tudor crossed her parking lot that day, she says, wind blew dirt at her — a "full slap in the face at 35 miles per hour." Indeed, the National Weather Service clocked winds in Colorado Springs that day at 31 mph, gusting to 36 mph. And the city's demolition management plan (see "How they drew it up," here) calls for the project to shut down if winds reach 15 mph or gust to 20 mph.
"When I came into the building," Tudor remembers, "I was covered with dirt and choking."
She called the city, and two city workers came to the site. "The first words they said to me was, 'We screwed up. We screwed up. We made a mistake. We made a mistake. Haven't you ever made a mistake?'" Tudor says. "Then they started backtracking and said, 'We were following all the procedures to protect the public.'"
When they suggested melting snow from her own building might have dropped on her, "I said, 'No, you were demolishing a building,' and they said, 'Well, it's good clean dirt.'" Problem is, Tudor says, "We have two e-mails from the city telling us it's contaminated dirt."
Deputy City Attorney Tom Florczak also showed up and, according to Tudor, told her, "Get a little dust in your face, did ya? We need to get back to work. You're holding up progress." The city calls Tudor's story "a misinterpretation of Mr. Florczak's inquiry." As for the "good clean dirt" comment, the city says it's unable to address that, but does note, "We understand there has been clean fill material brought into the site in the past."
Whatever Florczak said prompted Tudor to call Neumann, Bach's chief of staff. Tudor says Neumann seemed concerned and said she would try to stop the trucks, already en route to a landfill, so the city could test the materials. But Neumann told her while still on the phone the trucks had dumped their loads and it was too late. (The state says the material was approved for a landfill in El Paso County.)
Tudor's repeated calls to Neumann since that time haven't been returned. The city says that's because she was advised to let lawyers communicate instead, once Tudor "obtained a lawyer and began threatening legal action."
On March 13, environmental attorney Randall Weiner of Boulder filed a lawsuit against the city and Hudspeth on behalf of Smokebrush, Tudor and Goede. The suit alleges the contractor failed to follow the work plan and allowed asbestos and heavy metals to migrate to neighboring sites, which might have caused Tudor and others' health problems, and reduced the value of Tudor's property.
The suit notes Tudor and Goede "bear an increased risk of serious disease, illness and injury" from their exposure to deadly substances and seeks damages that include medical testing and treatment costs, loss of the Trestle Building's value, loss of use and enjoyment of the building, emotional distress, stress and anxiety and additional remediation of the Trestle property.
'Not just me'
Tom Antonson, director of Occupational Health Technologies, has done the testing at both the Trestle Building and 25 Cimino. While no one is allowed to talk about the tests at the latter, Antonson says his tests at the former showed dirt containing "hundreds of parts per million" of carcinogens.
Is that enough to endanger humans?
"Sure," he says. "The levels that [the Environmental Protection Agency] recognizes as safe? There's no level seen as safe. Obviously, there's concern because there are so many carcinogens there."
Goede and Tudor also had soil tests done at the park, which show comparatively tiny amounts of certain carcinogens. As far as they know, the city has not done its own testing there; the city itself did not comment on the matter before deadline.
Antonson says it's hard to guess how deep the substances permeate the ground. But he adds that the best short-term strategy is for Tudor and Goede to cover the dirt surrounding the Trestle Building.
A couple weeks ago, a Smokebrush-hired worker spread bark and mulch over the bare ground areas that border the parking lot. As for the lot itself, Goede says Smokebrush paid to have it professionally cleaned at a cost of $1,600. "What was supposed to take four or five hours ended up taking 16 hours," he says, because all of the water and dirt from the cleaning had to be captured and hauled away.
And problems have continued since. On April 8 and 9, winds that reached 40 mph blew the tarp off the asbestos materials, Goede says, and it wasn't replaced until two days later.
"Here this place sits with an open pit of dirt," Tudor says. "One reason this is urgent for us is, we have hundreds of people coming to our place. And it's not just me. Whoever is in that area is being affected by this. It's taken weeks and thousands of dollars and legal help to get anything."
After Tudor and Goede threatened to seek an injunction on April 12 to, as Tudor says, force the city to "enforce the city's own workplace rules for dust mitigation," the city agreed to spray the demolition site with potato starch to settle the soil and erect better fencing.
Bobby Hill, president of the association that oversees the Trestle Building — which includes a dentist's office, a design studio, software company, a photography business and a couple of attorney offices — hails Tudor and Goede for pushing the issue.
"Kat and Don have done a really diligent job of being very fair and honest," he says. "If you're saying there's nothing there, that's OK. But we don't think it's nothing. Maybe the whole building needs to be part of this, not just Smokebrush. The whole building is behind it."
Sick and tired
At this point, Goede says it's unclear whether Smokebrush and Marmalade will stay there. Tudor says she's experienced bouts of respiratory and intestinal illnesses, which she says led to loss of six pounds from her slight 100-pound body in a couple of weeks. "My heart rate has been high. I've had constant hoarseness, shortness of breath. My lung level is significantly decreased. I was sick ... vomiting, and having intestinal distress. I've had headaches, anxiety."
Goede, too, has suffered from respiratory problems, he says. And both remain skeptical the city is taking the situation seriously.
Tudor says Bach himself called her on March 25, saying he had just found out about the situation and that he "would have thought a big company could have been trusted to do a demolition job in a toxic waste site." He also told her he'd get to the bottom of it, Tudor says.
She hasn't heard from him since.
The city says in written comments that the mayor, like Neumann, was advised that "because the matter is in litigation, communications should be through the parties' counsel." And in a statement, it claims, "City Staff has been doing everything reasonable within its ability to prevent any dust migration off the site and to cooperate with the Plaintiffs in their efforts to obtain samples for testing for alleged toxic materials." The city also points out that work has been stopped until the matter can be resolved, proof of its "willingness to cooperate."
Still, Tudor and Goede are disappointed, and almost disbelieving that it's gotten this far.
"I've never been in a lawsuit in my life," Goede says, "and neither has Kat. We don't want to be in this thing. We just want to be heard."
Tudor adds she followed reporting procedures contained in the city's Emergency Preparedness and Safety Guide, including contacting authorities so they could warn others of the danger. But the city didn't seem to want to know. "Nobody has tried to ascertain if anyone was hurt or if there are health problems," she says.
"If you're a citizen of Colorado Springs and witness what really is almost a crime — toxic stuff being spewed — what is the response of the city? I have experienced it. And I'm just going to say, I'm a citizen who has been a good citizen. I run a nonprofit here that has directly benefited the city many times. If they will treat the president of a nonprofit foundation that's been one of the main donors to the city in this fashion, we do wonder what recourse most citizens would have who perhaps can't call Mr. Weiner to come advocate for them.
"When they told me to keep it a secret, I thought, 'Oh, so I can know but not the parents of the children who were playing on the playground, and the other tenants in the building,' and that makes me question their concern for other people's well-being.
"It is, as the mayor calls it, a toxic waste site, and they need to treat it like one."