From the Desk of Eric Heil, Town Attorney
March, 2004

EPA, ARCO, and Lead Issues

The Town of Rico and Atlantic Richfield Corporation presented ARCO’s application for a Voluntary Clean-Up Plan (“VCUP”) at a community meeting held on March 24th. ARCO is proposing a two phase plan for voluntary clean-up of lead contaminated soils. Phase I involves a comprehensive sampling program under which ARCO has agreed to sample every property in the historic platted portion of Rico (including residential, commercial, river corridor, improved and vacant lots).

“Access Agreements” will be sent to all property owners in early May. There is no charge or cost to property owners for allowing ARCO to sample properties. Also, property owners have no legal obligation to provide access for sampling of their property, and property owners have no legal obligation to provide access for subsequent clean-up if the sampling results indicate elevated levels of lead contamination. ARCO also wants to sample all properties sampled by EPA to verify EPA’s results. [Note: The use of fertilizers with ironite may cause a false test result of the presence of lead in yard]. Personally, my wife and I are going to allow ARCO to sample our properties.

Phase I will also include removal actions for residential yards with lead levels greater than 3,000 p/p/m lead concentrations as well as remediation of the Van Winkle headframe site area. Finally, in Phase I, a “risk assessment” of the health risk posed by lead concentrations will occur this summer. The risk assessment serves as the basis for determining the level of clean-up warranted in the community. We understand that the determination of an appropriate level of clean-up will likely range between 400 p/p/m to 3,000 p/p/m with different clean-up numbers being used for different properties (i.e. residential versus commercial versus park versus river corridor, etc.).

ARCO has requested that the Town of Rico approve the VCUP as a co-applicant. ARCO has clearly represented that they do not intend to seek any financial contribution from the Town for the clean-up activities. ARCO has submitted a “Statement of Roles and Responsibilities” that defines ARCO, Rico Renaissance and Rico Properties as the “Rico Work Group” which would be financially responsible for clean-up activities and defines the Town of Rico as not part of the Rico Work Group. Rico Renaissance and Rico Properties are currently negotiating their level of financial participation in the proposed voluntary clean-up program. The Town of Rico’s role as a co-applicant is defined as for the purpose of providing access for testing of Town streets, access throughout Town, and coordinating public education and involvement throughout the voluntary clean-up program.

Town is continuing to comment on the VCUP application and is reviewing Town’s potential liability as a co-applicant of the VCUP application. A public hearing is scheduled for the April 21st Town Board meeting and public comments are very important at this time for the Town Board’s decision making process. The Town has requested that review of the VCUP application be extended to May to allow time for additional comments and additional revisions to the VCUP application prior to a final decision by the Town as to whether to approve the VCUP application. Overall, the Town Board has been supportive of the voluntary clean-up approach because it is expected to be faster, more efficient, and coordinated with other Town planning activities and community goals.

Mayor Tom Clark and I attended a meeting in Denver at the EPA Region VIII offices to discuss the status and progress of ARCO’s VCUP application. Also at the meeting were three representatives from the Colorado Department of Public Health and Environment (“CDPHE”), several EPA representatives including Max Dodson, the Deputy Director of EPA Region VIII, representatives of ARCO including their attorney and overall project manager from their main headquarters in Los Angeles, and representatives for Rico Renaissance and Rico Properties.

At the meeting, it was agreed that EPA and CDPHE are supportive of allowing ARCO to perform the clean-up under the state’s voluntary clean-up program and agreed to the proposed schedule for the program, which is set forth below. However, EPA also indicated that it feels obligated to issue an Administrative Order on Consent against ARCO as a legal enforcement action for residential yards with over 3,000 p/p/m levels of lead concentration. An Administrative Order on Consent (“AOC”) is a form of legal enforcement action under CERCLA authority (federal Superfund laws). ARCO has expressed its strong preference to avoid the issuance of an AOC and preference to conduct the clean-up entirely as a voluntary clean-up program.

While an AOC is a form of a negotiated settlement combined with an enforcement action, it raises a variety of legal complications for ARCO and is not a simple matter. Under an AOC, ARCO agrees to waive its legal rights to dispute allegations by EPA, ARCO becomes subject to the threat of triple fines and penalties, and the scope of an AOC can be expanded by EPA during the course of the clean-up. My concern on behalf of the Town is that the negotiations for an AOC and legal issues raised by an AOC are likely to complicate issues, slow down the process to formulate the best clean-up plan, and distract all parties’ attention from the direct issue of prompt clean-up that protects the health of the Rico citizens. The issuance of an AOC for a limited portion of properties in Rico also creates a situation where the EPA has primary jurisdiction on the clean-up of some properties and the state has jurisdiction on the clean-up of other properties, which properties will be adjacent to each other.

At the meeting, we asked directly how the issuance of an AOC benefits the goal of protecting the health of Rico citizens considering that ARCO is willing to conduct a voluntary clean-up program that is reviewed by both the State and EPA. No benefit to the Town of Rico was expressed by the EPA and EPA explained at length that the adopted policies of EPA establish their first priority as “enforcement”. We responded that Rico’s first priority was “health”. EPA’s proposed issuance of an AOC appears to be the last outstanding issue between the parties.

Finally, at the meeting we expressed that clean-up of the Town park property, including the recently purchased addition, was very important to the community and that we felt it was likely the community would desire a higher level of clean-up in this location compared to other non-residential locations.
Kits for blood level testing are available at the Rico Town Hall and the San Miguel County nurses office. Blood level testing for lead is available at no cost for those interested. It is very important for the Town to know if any elevated levels of lead in blood actually exist in Rico as well as how many people have been tested. If a test indicates elevated lead levels in blood, then those results are entered into a state data base. To date, we know that no blood tests in Rico have indicated elevated lead level in blood; however, we have no idea how many people have been tested. If you had blood tested please let us know because it is important to know the actual health affect of lead concentrations in Rico soils.

The Town of Rico successfully received a technical assistance grant award in the amount of $15,000 from the Department of Local Affairs to assist with the cost of reviewing environmental issues in Rico.

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