A court-approved deal requires the clean-up of coal tar contamination near America the Beautiful Park near the new U.S. Olympic & Paralympic Museum downtown, settling a 2013 lawsuit brought by The Smokebrush Foundation for the Arts against the City of Colorado Springs.
The settlement requires the city to clean up coal tar contaminants left from a city-owned coal gasification plant that operated on the site from 1890 to 1931. Cleaning up the site is to start "as soon as reasonably possible," according to the agreement. It applies not just to city-owned property but others that may be contaminated.
"The court recognizes that contamination doesn't necessarily stop at a fence or property line," said Randall Weiner, the Boulder-based environmental attorney for the Smokebrush Foundation, which alleged contamination from the property leeched into the nonprofit's adjacent building.
The city is in the middle of a land swap agreement that includes properties at 25 and 125 Cimino Drive with developer Nor’wood Development Group. The agreement stipulates that the clean-up requirement would also obligate the property's future owners.
Colorado Springs spokeswoman Kim Melchor declined to comment on who may be responsible for the cleanup efforts, saying the settlement agreement has not been finalized.
The plant on the site heated coal to produce a gas that was used for street lighting. The process released a cancer-causing byproduct known as coal tar which contaminated the soil and underground water on the city’s property, according to court documents from 2018, when the case was brought before the Colorado Supreme Court.
After 1931, the city began using natural gas, and the plant sat idle until it was dismantled in the 1950s or ‘60s. The city later constructed a building for Colorado Springs Utilities on the property. By 2009, the building was no longer in use and in late 2012 the city contracted with Hudspeth and Associates to demolish the structure, court documents show. The demolition plan also included an asbestos abatement plan, according to court documents.
Demolition began in 2013. In March of that year, Smokebrush filed a complaint against the city and Hudspeth, alleging “asbestos, heavy metals and other contaminants from the gas and warehouse site have physically intruded onto (Smokebrush’s) property,” sickening Smokebrush employees in the Trestle Building next door at 218 W. Colorado Ave.
The 4th Judicial District Court sided with Smokebrush in 2013, saying Colorado Springs was liable for cleanup of the property, but the city appealed in 2015, claiming it wasn't required clean up the asbestos and coal tar contaminants under the Colorado Governmental Immunity Act.
After the Colorado Court of Appeals sided with the city, the case was brought before the Colorado Supreme Court, which in 2018 found the city liable for cleaning up contamination caused by the coal tar, but upheld the Court of Appeals’ decision to dismiss the asbestos claims.
Weiner said cleanup costs are undetermined because the extent of the contamination plume is currently unknown. The agreement requires the city to pay the Smokebrush Foundation $500,000 to cover legal costs, $100,000 of which will be paid to the Trestle Office Condominium Owners Association as part of the settlement agreement.
“The other owners of the Trestle Building are potentially impacted by any contamination,” Weiner said.
“It’s really a victory for the environment, because it shows municipalities can’t hide behind the argument that because the pollution they’ve created is old they aren’t responsible for cleaning it up,” Weiner said.
The settlement is "good for the city and it's good for us," said Kat Tudor, president and founder of the Smokebrush Foundation, which is headquartered in Manitou Springs. "We’ve reached an agreement that it needs to be cleaned up, and that’s the most important part. We’ve moved forward in an environmentally responsible way.”
In April 2017 the Colorado Springs City Council unanimously approved a trade of 5.58 acres around the site of a pedestrian bridge linking the U.S. Olympic & Paralympic Museum and America the Beautiful park to entities both controlled by Nor’wood Development Group, the master developer for the area. The land exchange included properties at 25 and 125 Cimino Drive.
Under the original land exchange agreement, the new owners were responsible for “any environmental remediation” of the property. A city resolution passed last October, “amended the proposed land exchange to allow the city to remove 25 Cimino from the exchange,” allowing Nor’wood to purchase only the property at 125 Cimino Drive, the bridge site, for $214,500.
But a resolution seeking to amend the original land swap agreement to place responsibility for the cleanup back onto the city in the event of court-ordered remediation or a settlement was tabled during a May 26 City Council meeting. The deal would have allowed the Nor'wood-alligned firms to buy 25 Cimino Drive for $3,683,100.
The El Paso County Assessor's Office shows the city still owns the two properties on Cimino Drive.
Nor’wood did not respond to an email requesting comment.
Tudor called the U.S. Olympic and Paralympic Museum, which opened to the public Thursday, the city’s “crown jewel ... How wonderful that this will be a beautiful place for people to look out on (the cityscape) rather than the subject of a … lawsuit."