SPECIAL TOWN OF RICO NEWSLETTER: MARCH 1ST, 2004
LEAD CONTAMINATION HEALTH RISK AND DOLORES WATER CONSERVANCY DISTRICT

This Newsletter provides an update on Lead contamination and health risks as well as recent progress on securing an adequate legal water supply. This Newsletter is being sent to all water tap holders as well as all property owners in the Town of Rico.

LEAD CONTAMINATION

Introduction: The Environmental Protection Agency (“EPA”) conducted a limited soil sampling of properties in Rico last fall. From this sampling event the EPA has concluded that the elevated levels of lead exist in soils in certain areas presents a potential health risk to Rico residents. EPA released their soil sampling information at a community meeting in Rico on February 11th, 2004. EPA has also indicated that they believe that lead levels in Rico, and, in a few identified residential yards in particular, present an “acute” health risk and warrant immediate clean-up action. Because of the significance of the issue and likelihood that decisions could be made within the next couple months, the Town of Rico is initiating a community involvement process to inform residents and property owners of the lead issues and solicit their participation in the decision making process that will occur over the next two to three months. The Town of Rico has scheduled the next community meeting for March 24th, at 7:00 p.m. at the Rico Town Hall, to present information on lead health risks, health risk determination, and a Voluntary Clean-up Application Plan proposal by Atlantic Richfield Corporation.

Background: The Town of Rico is a historic mining community located in the Pioneer Mining District. Many mining communities in the west have high concentrations of lead in soils as a result of past mining activity. It is also common in mineral districts to find naturally occurring elevated levels of lead. High concentrations of lead can pose health risks to residents.

Determining the risks posed by elevated concentrations of lead depends upon many factors, including: the level of lead concentrations, the form of lead (natural versus industrial or processed), the land use of the property and adjacent properties, the time duration of exposure, and age group of persons exposed. Lead exposure can affect the nervous system and cause negative impacts to mental capabilities. Children with developing bodies and minds are more susceptible to the negative effects of lead exposure.

The health risk posed by lead exposure is a serious issue; however, it is very important that complete and accurate information is obtained about lead concentrations and potential health risks in Rico before drawing conclusions or making decisions on appropriate removal actions. Everyone should know that (1) other contaminates, such are arsenic or mercury, have not been found in elevated levels in Rico soils, and (2) the Town’s water supply is not affected by lead contamination.

Soils Testing: The EPA soil sampling event last fall was not the first sampling event in Rico to find elevated levels of lead in soils. Prior sampling events include:

  1. EPA in 1986 (purpose unknown)
  2. Walsh Report in 1995 (Phase I and II Environmental Site Assessment conducted for Rico Properties/Rico Renaissance for their properties)
  3. ARCO in 1996 (limited sampling as part of Voluntary Clean-Up Application to remediate tailings piles)
  4. Titan in 1996 (purpose unknown)
  5. State of Colorado Brownfields in 2003 (Town of Rico application for grant funding to conduct assessment of potential redevelopment sites, limited to Street Maintenance Garage area and St. Louis Tunnel area)

While limited soil sampling conducted in the past has indicated elevated levels of lead in residential soils, the EPA soil sampling last fall has identified residential areas with even higher lead concentrations.

Lead Concentrations and Risks: There is no magic number of lead concentration where less is ‘safe’ and more is ‘unhealthy’. The tolerable level of lead concentrations depends upon many factors and can vary from community to community and property to property. EPA clean-up actions have ranged from a low of 230 parts per million (p/p/m) lead concentration to a high of 3,000 p/p/m. The most common target range for clean-up appears to be 400 p/p/m to 1,200 p/p/m. Residential, park and school areas with lead concentrations higher than 3,000 p/p/m are generally considered to pose an “acute” health risk as well as to qualify as potential Superfund caliber sites.

Current Health Risks: As stated before, children are the most at risk. Lead must enter the body and blood stream before it can cause negative impacts. This can occur from breathing airborne lead or ingesting lead. Preliminarily, sources of airborne lead are not known to exist. Town streets have been treated with magnesium chloride to suppress dust since 2000. Virtually no health risks from lead exist in the winter when the ground is frozen and under snow.

Areas of known high lead concentrations are the former Pro Patria Mill Site (slope from west end of Mantz Avenue to River Corridor) and the Van Winkle Headframe area. Areas with former mining related waste rock generally have elevated levels of lead. The School/Town playground area was sampled and the results indicated 400 p/p/m at the surface and 1,200 p/p/m at “grab depth” or 12” below the surface.

Current health risks can be reduced with a couple simple measures. First, do not let children play on former mine waste rock piles or tailings sites. Second, clean children’s hands after playing outside. Third, reduce the amount of soils tracked into your house by removing shoes upon entering and/or regular cleaning of floors.

Blood Level Testing: Blood can be tested for lead levels. Blood testing is available at the office of the county nurse in San Miguel and Montezuma Counties as well as the Telluride Medical Center and Southwest Medical Center in Cortez. Blood testing is relatively inexpensive, however, the Town is looking into options for paying for the costs of blood testing for all those in Rico who are interested. It is very important for the Town to gather the results of any blood testing for lead as part of the risk assessment process, so please let us know the results of any blood testing. To date, there are no known reports of any blood testing in Rico that has indicated higher concentrations of lead than national health standards.

Clean-Up Options: The EPA has indicated four potential options for clean-up and removal of lead contaminated soils. (1) “Time Critical” emergency response by EPA; (2) “Non-time Critical” emergency response by EPA; (3) Voluntary clean-up by a responsible and capable party; and (4) Superfund listing and clean-up. The Rico Town Board has already indicated that the community does not prefer Option 4 – Superfund designation. EPA has indicated its willingness to begin with Option 1 – Time Critical as soon as this May. Atlantic Richfield Corporation (“ARCO”) has indicated its willingness to conduct a clean-up under Option 3 – Voluntary Clean-Up Program (“VCUP”) pursuant to Colorado Department of Health and Environmental regulations.

Property Owner Responsibility and Liability: It is the EPA’s policy that EPA will not seek any enforcement action against individual residential property owners. Both EPA and ARCO are proposing to conduct removal of lead contaminated soils at no cost to residential property owners. It is our understanding at this time that property owners have the right to deny access for soil sampling as well as clean-up actions. Town is continuing to research many private property owner’s rights and legal issues, such as the legal obligation to disclose lead contamination during future real estate sales if known by the property owner. We are also researching and determining the treatment of vacant properties and commercial properties under both EPA’s and ARCO’s VCUP proposals.

VCUP – Town as Co-Applicant: ARCO has submitted a draft VCUP application to the Town for review which proposes Rico Properties, Rico Renaissance, and the Town of Rico as a co-applicants. The Town is reviewing this application right now and evaluating this proposal is a central issue during the community involvement process for the next two months. The Rico Town Board took action to approve first reading of an Ordinance approving the Town of Rico as a co-applicant to the VCUP application. Second reading is tentatively scheduled for the regular April Town Board meeting, which is intended to allow for the March 24th community meeting and receipt of public comments before making a final decision on the VCUP application.

ARCO has proposed the VCUP application with the understanding that the Town would not incur any financial expense as a co-applicant and that ARCO, Rico Renaissance and Rico Properties would bear the cost of clean-up. ARCO desires the Town as a co-applicant to gain access to sites for clean-up (including clean-up of Town streets, if necessary) to insure the best possible community involvement during the assessment and clean-up process, and to gain community support for the voluntary clean-up approach. The Town will need to evaluate many issues before finally deciding whether to be a co-applicant on the VCUP application or merely endorse the clean-up application.

ARCO VCUP draft Application: ARCO is proposing a two phase approach where Phase I involves comprehensive soil sampling of all areas in Town and future development areas and clean-up during 2004 of the highest risk sites. Phase II would involve completing the remainder of sites warranting clean-up in 2005. Another aspect of comprehensive clean-up is plans and controls to address future development activities, both in town and in future development areas.

It is important to the Town to make sure that not only current health risks from lead contaminated soils are abated, but to also make sure that future excavation, building and development does not create new health risks in the future. Other communities, such as Black Hawk and Central City, have enacted local “institutional control” regulations that require new development to adhere to more extensive requirements for excavation. Institutional controls typically establish an additional review process for excavation so that contaminated soils are handled separately and deposited in an approved “repository” rather than allowed to be redistributed in Town and create new health risks.

Actual Clean-Up Activity: The actual clean-up of properties generally involves removing the top 12” to 24” of contaminated soils, then replacing with clean uncontaminated fill. For residential properties this can require removal of fences, trees, and landscaping elements. Typically, the yard would be revegetated, trees replaced, and properties generally restored to their pre-existing condition. Large trees can often be saved by hand excavating around the roots.

The entity performing the clean-up typically works directly with property owners to review a site plan, document pre-existing conditions, and propose a plan for site work that is signed by both the property owner and the entity conducting the clean-up. Town is working to identify issues unique to properties in Rico, such as the use of propane tanks, septic tanks and leach fields. Town is also researching issues related to repair and reimbursement for any damage caused to private property as a result of clean-up activities. As with most construction type projects, identifying as many issues as possible up front and working closely with property owners and the entity performing clean-up will help promote the best possible project. Your input as property owners is very important to promoting the best possible project.

EPA vs. ARCO Proposals: There are many pros and cons to either an EPA led emergency clean-up action or ARCO voluntary clean-up program. Town is evaluating the many pros and cons so that the best community decision is made. Town is aware that both EPA and ARCO are capable of conducting such clean-ups responsibly and that other communities have been dissatisfied or critical of both EPA and ARCO clean-up programs. Issues that are being researched are: detail of clean-up proposal; oversight and ability to enforce clean-up plan; financial ability to complete clean-up once started; ability to complete clean-up within stated timeframe; comprehensive nature of either clean-up proposal; extent of community involvement; procedures and commitments for working with private property owners; coordination with other Town goals and projects; Town liability; and, the indirect impacts of clean-up actions either an EPA emergency clean-up action or ARCO Voluntary Clean-Up Program.

Community Involvement: The Town believes community involvement is critical to the success of any clean-up program. This newsletter is the first step towards broadly notifying all residents and property owners in the Rico community. A community meeting sponsored by the Town of Rico is scheduled for March 24th, at 7:00 p.m. at the Rico Town Hall. Town is researching putting information on the Town’s website at www.ricocolorado.org to make information more accessible. Community involvement is a multi-step process where information is provided, input is received, more questions are identified and answers sought, clean-up proposals are refined, then more public input is solicited and considered before final decisions are made. Any questions or comments you have are very important at this time. You are encouraged to contact Ashton Harrison, Rico Town Manager, a (970) 967-2863 or by e-mail at ricomanager@montrose.net, or Eric Heil, Rico Town Attorney, at (970) 967-5550 or by e-mail at ericheil@frontier.net. All e-mail comments will be copied to the Rico Town Board members.

DOLORES WATER CONSERVANCY DISTRICT
WATER USER AGREEMENT

Water User Agreement: The Rico Board of Trustees passed first reading of an Ordinance approving a Water User Agreement with Dolores Water Conservancy District. The Water User Agreement has been under negotiation for the last several years. The Agreement provides the Town of Rico with a legal right to use water that is intended to address the Town’s deficient legal water right status. Dolores Water Conservancy District (“DWCD”) is a special water district that built McPhee Reservoir for the purpose of providing irrigation water and Municipal and Irrigation water (“M&I”). DWCD provides water to the City of Cortez and the Town of Dove Creek.

Town’s Water Rights: Town’s existing water rights have a priority number of 47 and consists of the right to divert three cubic feet a second (“CFS”). Currently, .28 CFS has been decreed Absolute and 2.72 CFS is a “Conditional Right” which means the Town must develop, or increase, its water usage before it can apply to the Water Court to “perfect” the Conditional water right and obtain an Absolute decree.

DWCD has a priority number of 17 and the Montezuma Valley Irrigation Company (“MVIC”) has a priority number of 16. Due to the significant quantity of diversion and usage rights of DWCD and MVIC, the Town’s legal ability to divert water is affected primarily by the rights of DWCD and MVIC. During the last two drought seasons, MVIC has placed three “calls” on the Dolores River. Water users with a lower priority do not have the legal ability to divert water when a call is placed on the river. The Town of Rico has entered into three temporary Water User Agreements with DWCD to meet legal requirements to continue diverting water during these call periods.

The Town’s need to obtain a high priority status for its water rights has long been recognized. The Town of Rico did not formally file for water rights in water court until the 1970’s. Even though the Town of Rico is a historic community that has existed and diverted water long before other communities and water users in the watershed, the law of water rights in Colorado is very strict and requires filing formal water rights application before priority will be recognized.

The Water User Agreement with DWCD is expected to provide a sufficient legal right to divert water from the Town’s current point of diversion on Silver Creek.

Water Rights Option: The Town has explored two basic options to obtain a sufficient legal right to divert water: (1) purchase water rights, and (2) enter into a Water User Agreement and join Dolores Water Conservancy District. Senior water rights are all agricultural, so purchasing a senior water right would have required seeking water court approval to convert the seasonal agricultural water right to a year round M&I water right (municipal and industrial use). The first option was estimated to cost $300,000 to $400,000 for purchase and $50,000 to $100,000 in legal and engineering costs to obtain water court approval to convert the water right and change the point of diversion up to Rico. Purchasing senior water rights would have basically required purchasing one of the ranches between Rico and Dolores and “drying” up the ranch to move the water right to Rico.

The second option involves joining the Dolores Water Conservancy District. The first step requires entering into a Water User Agreement.

Drinking Water: The Town partnered with Dolores Water Conservancy District last summer to drill test wells north of Town in an alluvium area just north of the Burns turns. DWCD desired to drill test wells to determine if a lowered contained aquifer existed that could be tapped for potential “augmentation” use. The Town would also benefit from an augmentation source north of Town, but Town also desired to drill test wells to determine if a high quality water source existed that could potentially be developed for a new Town drinking water system. DWCD contributed $40,000 and Town contributed $10,000 for the test wells and Town expended another $3,000 to have the quality of the water tested. The test drilling indicated that a substantial quantity of very clean water is available north of Town.

The Dolores River has approximately ten times the flow of Silver Creek, so changing the Town’s water system to the Dolores River would provide both a larger water source as well as a better quality water source. The possibility of moving the Town’s municipal water system to the Dolores River north of Town was first recognized as one option in a 1995 long range planning water engineering report.

Terms of Water User Agreement: The terms of the Water User Agreement state that upon executing the Agreement DWCD agrees to forebear placing any call on the Town of Rico. The Town agrees to petition for the entire Town of Rico to join DWCD within three months of signing the Agreement (June, 2004). Town agrees to pay for water that it consumes, which is only calculated at 15% of the water town diverts. Right now, the payment for water consumed amounts to less than $2,000 a year, which is paid by the Town’s Water Fund.

The Agreement provides that if the Town of Rico fails to join the District within three years, then the District can terminate the Agreement. The District levies a 4.7 mill property tax, which would be paid by all property owners in the Town of Rico upon joining the District. The 4.7 mill property tax increase is roughly a 5% increase in the total property tax bill.

Procedures for Petition to Join DWCD: The Colorado State Statutes govern the procedures for joining a water conservancy district like DWCD. The property tax levied on properties within the District is under the District’s authority and would not be a Town property tax. There are two separate petition procedures to join a water conservancy district. The first procedure is very easy and would not require a lot of administrative or legal costs. By the first procedure, a petition signed by 5% of land owners is submitted to DWCD and District Court. The District Court then sets a hearing between 60 to 90 days after receiving the petition. If a “Protesting Petition” objecting to inclusion is not filed with the District Court with at least 5% property owner signatures, then the District Court approves the inclusion and the process is finished. All property owners can sign a petition for inclusion or a petition objecting to inclusion, regardless of residency, voter registration or nationality.

The second procedure requires 10% of “Qualified Electors” to sign a petition requesting an election be held on the question of inclusion. The definition of “Qualified Electors” under the water conservancy district statutes is very unique – to be a “Qualified Elector” you must (1) own property in Rico, (2) be registered to vote in Colorado, and (3) have resided in Rico for at least 32 days prior to signing a petition. If a petition is submitted that is signed by 10% of Qualified Electors, the District Court orders an election to be held. This second election process would require more administrative and legal costs to set up a special election with a unique voter base.

Next Steps: The Rico Board of Trustees will hold a public hearing on the second reading of an Ordinance approving the Water User Agreement with DWCD. The Town Board will need to decide which process to pursue within 2 months after signing the Agreement in order to submit a petition within the 3 month deadline.

Any questions or comments you have are very important at this time. You are encouraged to contact Ashton Harrison, Rico Town Manager, a (970) 967-2863 or by e-mail at ricomanager@montrose.net, or Eric Heil, Rico Town Attorney, at (970) 967-5550 or by e-mail at ericheil@frontier.net. All e-mail comments will be copied to the Rico Town Board members.

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